Citation Nr: 1809042 Decision Date: 02/13/18 Archive Date: 02/23/18 DOCKET NO. 08-29 051 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUE 1. Entitlement to a total disability rating based upon unemployability (TDIU), on a schedular basis. 2. Entitlement to a total disability rating based upon unemployability (TDIU), on an extraschedular basis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Daus, Associate Counsel INTRODUCTION The Veteran had qualifying service from July 2003 to January 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. In March 2012, the Veteran testified at Travel Board hearing before the undersigned Veterans Law Judge. In December 2012, July 2013, April 2016, and March 2017, the Board remanded for further development. Substantial compliance was not achieved. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The issue of entitlement to an extraschedular TDIU is addressed in the REMAND portion below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The following are considered one disability for TDIU purposes: (1) chronic muscular strain with spondylolisthesis at L5-S1 associated with status post left patella fracture; (2) chronic muscular strain with spondylolisthesis at L5-S1 associated with status post left patella fracture status post open reduction internal fixation; (3) left patella fracture status post open reduction internal fixation; (4) chronic left ankle strain associated with left patella fracture status post open reduction internal fixation; (5) left hip condition associated with chronic muscular strain with spondylolisthesis at L5-S1; (6) limitation to flexion of the right thigh associated with chronic muscular strain with spondylolisthesis at L5-S1; (7) sciatic nerve radiculopathy, left leg, mild associated with chronic muscular strain with spondylolisthesis at L5-S1; (8) sciatic nerve radiculopathy, right leg, mild associated with chronic muscular strain with spondylolisthesis at L5-S1; (9) gastroesophageal reflux disease associated with chronic muscular strain with spondylolisthesis at L5-S1; and (10) unstable and superficial scar, left knee, associated with left patella fracture status post open reduction internal fixation. 2. Eligibility for schedular TDIU consideration began on July 20, 2010, and the evidence shows that his service-connected disabilities had precluded him from obtaining and/or maintaining a substantially gainful occupation since that time. CONCLUSION OF LAW The criteria for a schedular TDIU have been met since July 20, 2010. See 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16(b), 4.19, 4.25, 4.26 (2017); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran generally contends that his service-connected disabilities preclude him from obtaining and/or maintaining a substantially gainful occupation. As discussed below, the Board finds that schedular TDIU is warranted since July 20, 2010. The law provides that a TDIU may be assigned where the Veteran is rated at 60 percent or more for a single service-connected disability, or rated at 70 percent for two or more service-connected disabilities and at least one disability is rated at least at 40 percent, and when the disabled person is unable to secure or follow a substantially gainful occupation as a result of the service-connected disability. 38 C.F.R. §§ 3.340 , 3.341, 4.16(a). Where the Veteran fails to meet the applicable percentage standards enunciated above, an extraschedular rating is for consideration where the evidence otherwise shows that the Veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16 (b). When determining whether the schedular requirements are met, section 4.16 permits multiple disabilities affecting a single body system, or disabilities resulting from common etiology or a single accident, to be considered as one disability. In this Veteran's case, many of his service-connected disabilities are from a common etiology. Specifically, the following are considered one disability for TDIU purposes because they result from a common etiology: (1) chronic muscular strain with spondylolisthesis at L5-S1 associated with status post left patella fracture (10 percent from May 24, 2006, to January 31, 2013; 20 percent from February 1, 2013, to July 31, 2014) ; (2) chronic muscular strain with spondylolisthesis at L5-S1 associated with status post left patella fracture status post open reduction internal fixation (20 percent since July 31, 2014); (3) left patella fracture status post open reduction internal fixation (10 percent since January 16, 2005); (4) chronic left ankle strain associated with left patella fracture status post open reduction internal fixation (10 percent since November 22, 2014); (5) left hip condition associated with chronic muscular strain with spondylolisthesis at L5-S1 (10 percent since July 20, 2010); (6) limitation to flexion of the right thigh associated with chronic muscular strain with spondylolisthesis at L5-S1 (10 percent since July 20, 2010); (7) sciatic nerve radiculopathy, left leg, mild associated with chronic muscular strain with spondylolisthesis at L5-S1 (10 percent from February 1, 2013, to May 1, 2015); (8) sciatic nerve radiculopathy, right leg, mild associated with chronic muscular strain with spondylolisthesis at L5-S1 (10 percent since February 1, 2013); (9) gastroesophageal reflux disease associated with chronic muscular strain with spondylolisthesis at L5-S1 (10 percent since November 22, 2014); and (10) unstable and superficial scar, left knee, associated with left patella fracture status post open reduction internal fixation (10 percent from May 24, 2006, to July 30, 2014). See 38 C.F.R. §§ 3.340, 3.341, 4.16(a); November 2017 Codesheet. When these disabilities are combined, the Veteran became eligible for schedular TDIU on July 20, 2010. See 38 C.F.R. §§ 4.16(a), 4.25, 4.26. The longitudinal record reflects that the Veteran has been unable to perform various job duties and has had to quit or miss work excessively at several jobs. See June 2007 Statements by S.G., T.D., and J.W.; August 2010 Statements by S.G., T.F., W.N., and the Veteran; March 2012 testimony. Regardless of the Veteran's remaining functional ability during periods when he is able to work, the sole fact that the severity of his limitations would likely require sick leave or unpaid absences beyond what is typically allowed to maintain a substantially gainful occupation is enough to warrant TDIU as of the date the schedular criteria were met. ORDER Schedular TDIU is granted from July 20, 2010, subject to regulations applicable to the payment of monetary benefits. REMAND The Veteran's appeal ultimately stems from a May 2006 claim for an increased ratings for his service-connected disabilities. In a July 2013 Board decision, the Board took jurisdiction of the claim of entitlement for TDIU based on the Rice case, which held that a claim for TDIU is part and parcel of an increased rating claim, when such a claim is raised by the record. See Rice v. Shinseki, App. 447 (2009). This decision grants TDIU from July 20, 2010, at which time the Veteran met the schedular requirements for TDIU. However, given that the evidence also indicates that the Veteran's service-connected disabilities may have precluded such occupation due to having to quit or miss work excessively at several jobs prior to that time, the period from May 2006 to July 2010 remains on appeal. The Board is precluded from adjudicating extraschedular TDIU without first seeking a referral to the Director of the Compensation Service. Given that the Veteran claims unemployability prior to 2010, based on the following statements, it is appropriate to be referred. See June 2007 Statements by S.G., T.D., and J.W.; August 2010 Statements by S.G., T.F., W.N., and the Veteran; March 2012 testimony. Accordingly, the case is REMANDED for the following action: Refer the issue of entitlement to an extraschedular TDIU prior to July 20, 2010, to the Director of the Compensation Service for adjudication. See June 2007 Statements by S.G., T.D., and J.W.; August 2010 Statements by S.G., T.F., W.N., and the Veteran; March 2012 testimony (indicating that the Veteran's service-connected disability may have precluded a substantially gainful occupation due to having to quit or miss work excessively at several jobs). The Veteran has the right to submit additional evidence and argument on the remanded matter. See Kutscherousky v. West, 12 Vet. App. 369 (1999). All remanded claims must be handled expeditiously. See 38 U.S.C. §§ 5109B, 7112 (West 2012). ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals