Citation Nr: 20046366 Decision Date: 07/10/20 Archive Date: 07/10/20 DOCKET NO. 14-09 919 DATE: July 10, 2020 ORDER Entitlement to a total disability rating based on individual unemployability, (TDIU), on an extraschedular basis, is granted. FINDINGS OF FACT 1. Service connection is in effect at 30 percent for dysthymic disorder, 10 percent for lumbar strain with degenerative disc disease, 10 percent each for a left and right hip strain, 10 percent each for a left and right knee strain, and 10 percent for a corneal scar of the right eye; and noncompensable ratings for bilateral hearing loss and a left and right foot hallux valgus deformity. The Veteran’s combined evaluation is currently 60 percent. 2. The Veteran does not meet the schedular criteria for consideration for a TDIU under 38 C.F.R. § 4.16(a). 3. The evidence of record is at least in equipoise as to whether the Veteran’s service-connected disabilities, alone or in combination, preclude him from securing or maintaining a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU, on an extraschedular basis, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1977 to January 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2011 and June 2012 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded the matter for TDIU consideration on an extraschedular basis to the Agency of Original Jurisdiction (AOJ) in September 2019. The AOJ referred this claim to the Director, Compensation Service, who provided an opinion on this matter in May 2020. Thus, there has been substantial compliance with the September 2019 Board remand. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.326. As part of its duty to assist, VA is required to make reasonable efforts to assist a Veteran in obtaining evidence necessary to substantiate a claim. 38 U.S.C. § 5103A(b), 38 C.F.R. § 3.159(c). That assistance may include providing the Veteran with a medical examination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). The Board’s obligation to read filings in a liberal manner does not require that the Board search the record and address procedural arguments when the claimant fails to raise them. Id. The Board has reviewed all of the evidence of record. The Board finds that the duties to notify and assist have been fulfilled. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). A remand by the Board confers on the Veteran, as a matter of law, the right to compliance with the remand orders. A remand imposes upon the VA a concomitant duty to ensure compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran’s claim was remanded in September 2019 to afford the Veteran an opportunity to complete VA form-21-8940 and to refer the claim to the Director, Compensation Service, for consideration of TDIU on an extraschedular basis. The VA instructed that the consideration include a full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The VA provided the Veteran VA form 21-8940 on February 22, 2018, to which the Veteran failed to respond. The duty to assist is a two-way street and if the Veteran wishes to help, he cannot passively wait in those circumstances where he may or should have information that is essential in obtaining the relevant evidence but fail to provide such information. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). The Veteran was scheduled for VA examinations starting in June 2018, to which the Veteran repeatedly cancelled. The advisory opinion was obtained in May 2020. The Director’s opinion discussed the Veteran’s service-connected disabilities and reviewed the factors above. The opinion is thorough, supported by the record, and answered the questions posed. Accordingly, the Board finds that there has been substantial compliance with the Board’s remand directives. Stegall, 11 Vet. App. at 271. Extraschedular TDIU Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or with less disability, if certain criteria are met. 38 C.F.R. § 3.340. Where the schedular rating is less than total, a total disability rating may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extra-schedular basis may be granted in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). To prevail on an extra-schedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A disability rating is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether one can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Notably, 38 C.F.R. § 4.16(b) merely requires a determination that a Veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. Substantially gainful employment is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a Veteran actually works and without regard to a Veteran's earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The determination as to whether TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce un-employability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may not be given to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran’s service connected disabilities are rated at 30 percent for dysthymic disorder, 10 percent for lumbar strain with degenerative disc disease, 10 percent each for a left and right hip strain, 10 percent each for a left and right knee strain, and 10 percent for a corneal scar of the right eye; he has noncompensable ratings for bilateral hearing loss and a left and right foot hallux valgus deformity. The Veteran’s combined evaluation is currently 60 percent. Here, the Board notes that the Veteran’s combined evaluation is currently 60 percent and is insufficient to consider TDIU on a schedular basis because the Veteran does not have a single service-connected rating evaluation of 60 percent, or one ratable at 40 percent. 38 C.F.R. § 4.16(a). Id. The Board notes initially that it is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation Service. See Bowling v. Principi, 15 Vet. App. 1 (2001). As noted above, the Board directed that the AOJ refer the Veteran’s extraschedular TDIU claim to the Director, Compensation Service, in its September 2019 remand. The AOJ referred this claim to the Director, Compensation Service, in May 2020, who provided an opinion against the claim that same month. After a review of the evidence of record, the Board finds that there is conflicting evidence regarding whether the Veteran is unable to secure substantially gainful employment solely due to his service-connected disabilities. While there is an indication of significant substantially gainful employment impairment due to the symptoms associated with the Veteran’s service-connected disorders, lay evidence suggests otherwise. As such, the Board finds that the evidence is in equipoise to the Veteran’s claim of entitlement to a TDIU, on an extraschedular basis. 38 C.F.R. § 4.16(b). The Board acknowledges initially that the Veteran’s post-service employment history, is not entirely clear from a review of the record and that the Veteran appears to be unemployed since October 2009. However, the Veteran has not submitted relevant information of employment history as requested by the Board in February 2018, in the VA form 21-8940. The evidence weighing against the claim includes the Veteran’s lay statements offered during VA medical treatment May through July of 2012. VA treatment records from this time period document his report of helping family members with farm work and lifting hay bundles weighing seventy-five pounds. This suggests that the Veteran did not restrict himself from performing work that involved physical activity, at least to some extent. The Board notes, however, that there is no evidence indicating whether the Veteran perform this farm work on a full time basis, or even for the amount of time that could be considered a full workday. As noted further below, the evidence also suggests that the Veteran continued to experience service-connected symptomatology while helping on the family farm. The other evidence of record, however, indicates that the Veteran’s service-connected dysthymic disorder, lumbar strain, left and right hip strain, left and right knee strain, present an exceptional or unusual disability picture such that the symptomatology associated with these disabilities, alone or in combination that likely limits the Veteran from securing or following a substantially gainful occupation. Illustratively, a March 2010 back examination shows that the Veteran rated his pain as a three out of ten and moderate, with some radiation to his buttocks bilaterally. He reported that his pain occurred daily and lasted most of the day. The Veteran reported periods of flare ups, during which the severity of pain was a seven out of ten. Frequency of the flare ups depended on his activity, but the Veteran stated his flare ups occurred about twice a month and lasted for a duration of two days. The examiner noted the aggravating factors were lifting and bending while there are no precipitating factors. The examiner noted there was no additional limitation of motion or function during the flare up as indicated by the Veteran. The examiner noted the Veteran could walk as much as three to four miles depending on the terrain on the ground. The examiner noted the Veteran was presently unemployed, so there is no effect on his occupation. However, the examiner noted that the disability effected the Veteran’s activities of daily living when bending over to lift, pulling, or tugging any item. Upon inspection of the spine, the examiner noted gait and movement appear to be accomplished with ease and asymmetry and the Veteran was able to do leg lifts to forty-five degrees before experiencing pain. The March 2010 VA left knee examination reveals that the Veteran rated the pain as a ten out of ten, reported a frequency of occurring twice a month, and identified the duration as two days. The Veteran stated his left knee occasionally gave out and lacked endurance. The examiner noted that the Veteran’s left knee pain did not affect his occupation, as he was unemployed. The examiner noted, however, that the Veteran’s activities of daily living include standing for long periods, twisting or turning of the knee, and that there is decreased function on standing for long period of time and “negative on walking”. At a September 2010 right knee examination, the examiner noted that precipitating factors of right knee symptomatology included lifting items carrying items, bending, and squatting and the alleviating factors is rest. The examiner noted that there was no evidence of pain in the affected joint at rest, but was present during repetitive motion. The examiner noted the loss of function as negative for pain, fatigue, weakness, lack of endurance, incoordination of the right knee. When examined for hip disabilities in September 2010, the Veteran reported having recurrent, chronic, bilateral hip pain, which he rated as a 6 out of 10 in severity, and tenderness. Flare ups occurred twice a month for both hips, with a pain severity of 8 out of 10, and lasted for three days. He identified the functional impairment due to his hips as pain, weakness, fatigue, and incoordination during flareups. The examiner noted that the disabilities affected the Veteran’s activities of daily living such as walking, standing, twisting, turning, any type of activity that caused him to have discomfort in his hips. The examiner noted the Veteran had functional limitation on standing and walking as it relates to both of his hips. There was no evidence of pain in the affected joint at rest, but pain was present with repetitive motion. The examiner noted that the Veteran had a normal gait, he was able to walk on his heels and toes and had normal tandem walking. The examiner further noted there was pain, fatigue, weakness, lack of endurance, and incoordination with repetitive motion. An April 2012 VA Mental Disorders examination report notes the Veteran’s “extensive” employment history in manufacturing and construction, as well as his report that he has not worked full time since 2009. He reported experiencing episodes of anxiety and depression while he was working, but indicated it was not to the extent where the symptoms significantly interfered with his ability to work. A May 2012 VA medical center (VAMC) treatment record reflects that the Veteran complained of chronic low back pain and right knee pain. The Veteran stated that it felt like his knee was swollen and reported back pain, stiffness with bending and twisted. The Veteran indicated that the frequency was daily, the aggravating factors were back bending and twisting and the alleviating factors were avoiding activities that trigger back pain. The record reflects that the Veteran did exercise at the time. The Veteran indicated that he had daily pain with bending and twisting, but stated that he continued to work helping a family member with farming activities. He stated he has been unemployed for many years. The examiner noted the Veteran suffered recent derangement of the right knee after a slipping/twisting fall while working outside. The Veteran indicated that there was no right knee swelling, but he felt that there was something like “jello” inside his knee. A July 2012 VAMC treatment record reflects that the Veteran reported that he had been helping family members with farm work. He reported he has been lifting bundles of hay weighing approximately seventy-five pounds each. Later that same month, the Veteran reported a longstanding history of chronic lumbosacral spine pain. His chronic lumbosacral spine pain was mostly noticed during prolonged sitting, standing, walking, bending, lifting, carrying, pushing, and pulling. An August 2012 VAMC treatment record reflects the Veteran reported long standing right knee pain with weightbearing activity. He reported no swelling, or instability. He reported the pain was not relieved by pain medication. He also reported having less intense left knee pain. In October 2014, the Veteran reported agitation, anxiety, strange/unusual thoughts, and difficulty sleeping. In December 2014, the Social Security Administration (SSA) found that the Veteran has been disabled since October 13, 2009. The associated records note the Veteran previously worked as a materia attendant, finisher, and laborer. The SSA found that the Veteran had severe impairments of degenerative disc disease of the lumbar spine, arthropathies of the knees and depression. The SSA found that the Veteran could lift and carry up to ten pounds but was limited to standing or walking for one hour in an eight-hour workday on an alternating basis and sitting for less than thirty minutes at one time for the remainder of the workday. A review of the evidence from SSA shows a mental evaluation that noted mild memory loss and moderate difficulties with concentration and maintaining social functioning. As previously noted, the Veteran was scheduled for multiple examinations for his service-connected disabilities in June 2018, and April 2019, all of which he cancelled. In May 2020, the Director of VA Compensation and Pension Service reviewed the evidence of record and opined that the evidence fails to support that the Veteran’s service-connected disabilitie, or a combination of the effects of his disabilities, prevented him from gainful employment. The Board notes, however, that the May 2020 opinion is not supported by sufficient rationale. Moreover, while the Director determined that the evidence did not show that the Veteran is unable to obtain sedentary work, this conclusion does not adequately address the medical evidence indicating that the Veteran experiences functional impairment with prolonged sitting. Further, the opinion does not address the lack of evidence indicating that the Veteran has the work experience or training to perform sedentary employment. Given the conflicting medical evidence, and resolving all doubt in favor of the Veteran, the Board finds that an extraschedular TDIU is warranted. While the evidence does not definitely show that the Veteran is unable to work due to his service-connected disabilities, the medical evidence is at least in equipoise as to this question. The Board finds the VA examinations and medical records probative regarding the functional impact of the Veteran’s service-connected disabilities have on his ability to perform daily activities, to include impairment with prolonged sitting, standing, walking, bending, and lifting. From this, the Board infers that the Veteran is able to perform mentally but is likely limited in performing physical requirements, whether standing or sitting, including slightly physical activity or deskbound. Although the Veteran reported helping with a family member’s farm, there is no indication that he performed such physical acts to such a degree as would be required to maintain substantially gainful employment. There is no indication that the Veteran has the work experience or training to perform sedentary work, and even if so, the medical evidence reflects that he would still face limitations due to difficulty with prolonged sitting. While the Veteran has not been a full participant in the development of his claim, the Board cannot ignore the favorable evidence indicating that his service-connected disabilities, in combination, prevent him from working. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107. Thus, the Board finds that the evidence is at least in equipoise as to meeting the criteria for entitlement to a TDIU, on an extraschedular basis, and TDIU on an extraschedular basis is warranted. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Q. Alli, Associate 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.