Citation Nr: 19145939 Decision Date: 06/13/19 Archive Date: 06/12/19 DOCKET NO. 08-13 909 DATE: June 13, 2019 ORDER An extraschedular total disability rating based on individual unemployability due to service-connected disability (TDIU) under 38 C.F.R. § 4.16(b), is granted. FINDING OF FACT The Veteran’s sole service-connected disability, Scheuermann’s disease with secondary herniated nucleus pulposus, rated 40 percent, is shown to result in functional impairment that precludes him from maintaining substantially gainful employment. CONCLUSION OF LAW An extraschedular TDIU rating is warranted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The appellant is a Veteran who served on active duty from March 1971 to May 1974. This matter is before the Board of Veterans’ Appeals (Board) on appeal from an April 2010 Department of Veterans Affairs (VA) rating decision. In February 2011 and March 2012, the case was remanded for additional development. In September 2011, a videoconference hearing was held before the undersigned. An October 2012 Board decision denied TDIU (under 38 C.F.R. § 4.16(a) and (b)) and two additional claims seeking service connection. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (CAVC). A February 2014 CAVC Memorandum Decision affirmed the Board’s decision in part regarding the service connection claims and vacated the decision in part regarding the TDIU claim, which was remanded to the Board for additional proceedings consistent with the Memorandum Decision. In July 2015, the Board remanded the case for another Board hearing; a videoconference hearing was held before the undersigned in January 2016. An April 2016 Board decision denied a TDIU on a schedular basis under 38 C.F.R. § 4.16(a) and remanded to the RO the matter of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). An extraschedular TDIU rating under 38 C.F.R. § 4.16(b) is granted. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more (service-connected) disabilities, provided at least one is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). As the Board determined in an April 2016 decision, the Veteran does not meet the schedular criteria for a TDIU rating under 38 C.F.R. § 4.16(a). His sole service-connected disability is Scheuermann’s disease with secondary herniated nucleus pulposus, which is rated 40 percent. However, where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when a veteran is nonetheless unable to maintain a substantially gainful occupation due to service-connected disability. 38 C.F.R. § 4.16(b). Here, the Board finds that the evidence demonstrates that the Veteran is unable to maintain a substantially gainful occupation due to his service-connected Scheuermann’s disease with secondary herniated nucleus pulposus. In testimony at Board hearings, the Veteran described how his service-connected back disability and its associated symptoms and medication affect his daily functioning to the extent that he is unable to work. In a February 2016 private vocational assessment, a certified rehabilitation counselor concluded, after a review of the Veteran’s claims file and interview of the Veteran, that he was incapable of performing substantially gainful employment, regardless if it was sedentary, light, medium, or heavy-duty work. This opinion, at least in part, appears to be based on nonservice-connected disability, to include a cognitive disorder (for which service connection was denied in an August 2012 rating decision, based on a July 2012 VA mental examination conducted to determine cognitive deficits related to service-connected disability which found the Veteran did not have a diagnosis of a mental disability). Moreover, the Veteran’s VA primary care physician, Dr. Richlie, indicated in an August 2011 lumbar spine residual functional capacity assessment that only side effects of drowsiness and sweats may have implications for the Veteran’s employment. In a May 2017, a VA medical opinion (based on a review of the record) obtained to address all symptom manifestations (including medication side effects) of the Veteran’s service-connected back disability, a Board-certified physician (with the specialty of physical medicine and rehabilitation) found the Veteran’s spine X-rays to be “quite impressive in terms of the scoliosis” and stated that given his back condition and need for crutches superimposed on his medications, he would be “very limited.” She asserted that there should be no significant symptoms from the pain medications (except for pregabalin and tramadol, which can cause some dizziness and lightheadedness, sleepiness, and confusion), but she also commented on the functions the Veteran would be able to do and those he would have difficulty accomplishing, to include sitting, standing, walking, lifting, and bending. Each of these functions were appreciably limited. To correct some erroneous history reported in her May 2017 opinion, in a February 2018 addendum opinion (also based on an examination of the Veteran, to include further testing), the examiner found the Veteran to be more restricted functionally on account of his back disability than in the previous assessment. She diagnosed Scheuermann’s condition variant with severe scoliosis (33 degrees), kyphosis, bridging osteophytes, degenerative disc disease, facet arthropathy, without clinical evidence of radiculopathy. She stated that tests revealed a suggestion of inflammatory process, which she noted was a clarification and progression of the service-connected condition, and asserted that it was “remarkable that [the Veteran] was able to work as a long as he did as a printer after his military service.” Relative to the spine condition’s impact on employment, the examiner noted that the Veteran has chronic pain and marked kyphoscoliosis that impacts his postural stability including sitting, standing, and walking positions, and that his “profound spine abnormalities would impact employment setting including sedintary [sic] employment.” She added that the spine abnormalities would impact tolerance of sitting and sitting stability (e.g., he could sit for only 1 hour at a time before needing to move/stretch, and the severity of his kyphoscoliosis required that he lay down for periods of time during the day), and that ergonomic equipment would not fully compensate for such abnormalities. In a January 2019 addendum VA medical opinion addressing side effects of the Veteran’s medications, a different VA physician indicated that he had contacted the Veteran, who essentially related that his side effects were minimal, if any. Thereafter, the RO referred the instant case to the Director, VA Compensation Service, for consideration of an extraschedular TDIU, with the recommendation that the evidence was against the claim. In March 2019, the Director determined that the available evidence did not support the Veteran’s contentions that his service-connected disability alone prevented all types of gainful activity, and that an extraschedular TDIU was denied. The Board has considered the determinations by the RO and the Director, but notes that neither discussed the VA medical opinions of May 2017 and February 2018. The Board deems those opinions to have substantial probative value in support of this claim. The Board has considered the Veteran’s educational and occupational background, in addition to the medical evidence of his functional capacity due to the service-connected back disability. The evidence, including the Veteran’s TDIU application in November 2009 and various VA examination reports such as a July 2012 psychiatric examination, provide conflicting reports on whether the Veteran s college course. Nevertheless, he does not appear to have had any additional education or training. Regarding his employment history, he was an administrative specialist during service, and after service he worked for a long period as a printer/graphic technician. He was last employed in the early 2000s, after working a number of jobs for a temporary agency performing various work to include as a driver and a clerk. On July 2012 VA mental examination it was reported that he was self-employed in a family-owned business (wind-farm for energy) and that looked after its finances and supplies and dealt with vendors; however, in a February 2017 statement, the he that he volunteered his time on occasion to help in the business, and that his contribution amounted to only about 20 hours per year. In short, despite having only a 40 percent rating for his sole service-connected disability, the Veteran’s educational/occupational background and his current medical record constitute persuasive evidence that his service-connected spine symptoms preclude him from engaging in regular substantially employment. Accordingly, the evidence supports the award of a TDIU rating on an extraschedular basis. George R. Senyk Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Debbie Breitbeil, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.