Citation Nr: 20060693 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 11-02 566 DATE: September 15, 2020 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1969 to July 1971. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2009 rating decision. In October 2015, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. In December 2015 and June 2018, the case was remanded to the Agency of Original Jurisdiction (AOJ) for further development. That development was completed, and the case has since been returned to the Board for appellate review. Upon review, the Board finds that additional development is needed prior to adjudication of the claim. The Veteran is currently assigned a 50 percent evaluation for posttraumatic stress disorder (PTSD) with depression and anxiety; a 40 percent evaluation for type II diabetes mellitus with erectile dysfunction; a 40 percent evaluation for low back degenerative disc disease; a 30 percent evaluation for headaches associated with cervical spine limitation of motion; a 20 percent evaluation for left upper extremity peripheral neuropathy associated with type II diabetes mellitus; a 20 percent evaluation for right upper extremity peripheral neuropathy associated with type II diabetes mellitus; a 20 percent evaluation for right lower extremity peripheral neuropathy associated with type II diabetes mellitus; a 20 percent evaluation for a left lower extremity peripheral neuropathy associated with type II diabetes mellitus; a 10 percent evaluation for cervical spine limitation of motion associated with low back degenerative disc disease; a 10 percent evaluation for left lower extremity radiculopathy associated with low back degenerative disc disease; a 10 percent evaluation for right lower extremity radiculopathy associated with low back degenerative disc disease; and a noncompensable evaluation for lower back surgical scars associated with low back degenerative disc disease. His combined evaluation is 100 percent. He was also granted a 100 percent evaluation following back surgeries from June 30, 2011, to January 1, 2012, and from May 3, 2012, to December 1, 2012, during which he was also in receipt of special monthly compensation (SMC) under 38 C.F.R. § 3.1114(s). In Bradley v. Peake, 22 Vet. App. 280, 294 (2008), the Court determined that a separate TDIU rating predicated on one disability (although perhaps not ratable at the schedular 100 percent level) when considered together with another disability, separately rated at 60 percent or more, could warrant special monthly compensation under 38 U.S.C. § 1114(s). Thus, it might be of benefit the Veteran to retain the TDIU rating, even where a 100 percent schedular rating has also been granted, as a separate award of TDIU predicated on a single disability may form the basis for an award of SMC. See also Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010). The Veteran does not have any service-connected disability rated at 60 percent or higher. Therefore, the only avenue for further benefit to the Veteran would be entitlement to TDIU on an extraschedular basis with consideration of only one service-disability. Although the Board does not have the authority to grant TDIU on an extraschedular basis in the absence of a referral to VA’s Director of Compensation Service, the Board has considered whether a remand for such referral is warranted. In this case, the Veteran has asserted that he is unable to work due to his service-connected low back disability. A review of the record shows that the Veteran obtained three associate’s degrees and that he was employed as a wood model maker for 35 years. See May 2002 private treatment record, April 2009 VA PTSD examination report. The evidence also indicates that he retired in 2006. See June 2009 VA back examination report. During a September 2009 VA back examination, the Veteran explained that he retired from his job as a wood model maker and that he attempted to work as a truck driver following his retirement. He stated that he found it too difficult to get into the cab of the truck and that securing the load with tarps was also very difficult. The Veteran also indicated that driving was very hard on his back. He related that he did not continue working due to his back pain. Records from the Social Security Administration (SSA) dated in January 2011 indicate that the Veteran was granted SSA disability benefits beginning in January 2009 due to his low back disability. In a January 2011 private treatment record, the Veteran described having chronic, sharp pain with an aching sensation of moderate to severe intensity that increased with sitting, standing, ascending and descending stairs, bending and transferring positions, driving a vehicle, participating in physical or recreational activities, lifting and carrying objects, and performing house and yardwork. During an April 2011 VA back examination, the Veteran reported that he had not worked since 2006. He related that he had problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength in his lower extremities, and pain. He stated that he had difficulty with his daily chores and yardwork and that he had limited exercise and recreation due to his low back disability. The Veteran described being unable to perform most things that he once could perform. He noted that he attempted to work as a part-time truck driver after he retired, but that he was unable to perform the job due to his back disability and quit after three months. In a May 2011 statement, a private physician related that the Veteran quit working prematurely due to his back pain and that he stopped many of his vocational activities. In an August 2011 statement, the Veteran reported that he was required to wear a back brace while sitting and standing. He related that he is unable to bend, twist, or lift, and that his back injury placed great limitations on his life. He also stated that he was in so much pain that he could hardly do anything much less walk. In another August 2011 statement, the Veteran noted that he was unable to bend, twist, or lift anything that weighed over five pounds. In a January 2012 VA headaches examination report, the VA examiner opined that the Veteran’s headaches impacted his ability to work. The examiner indicated that the Veteran was unable to look up and read or work on a computer. In a January 2012 VA examination report, the VA examiner opined that the Veteran’s type II diabetes mellitus did not impact his ability to work. The examiner noted that the Veteran was employed as a wood model maker and retired in 2006 when he became eligible to retire based on the duration of his work and secondary to his chronic back problems. In a February 2012 statement, the Veteran stated that he had continued low back pain with any physical activity. He reported that he was able to walk for one hour per day, but his back surgeon did not want him to perform any physical activity other than walking, including any bending or twisting. In a March 2012 statement, the Veteran related that he was unable to do anything except for short walks following his second lumbar fusion surgery in June 2011. He indicated that his daily routine consisted of emptying the dishwasher and the trash and sitting in a recliner. In a May 2012 statement, the Veteran noted continued back pain and difficulty due to his injury. He stated that he was unable to perform normal everyday activities and chores around his house. In a May 2012 private treatment record, the Veteran reported that he was unable to walk any significant amounts any longer due to his back pain. In a June 2012 private treatment note, the Veteran’s back surgeon indicated that the Veteran had done well following a May 2012 surgery to reapply instrumentation from L3 through S1. He noted that the Veteran’s pain had subsided and that he was able to ambulate up to 45 minutes with very little limitation. The surgeon stated that the Veteran felt quite comfortable and improved. However, the surgeon also related that he did not believe that the Veteran would be able to regain his ability to bend, lift, carry, or push anything significant in the future. Specifically, he noted that the Veteran’s ability to lift anything over 30 pounds in the future was probably going to be nonexistent. In a September 2012 VA spine examination report, the VA examiner opined that the Veteran’s back disability did impact his ability to work. The examiner noted that the Veteran was unable to bend, lift, and carry. The examiner noted concurrence with the Veteran’s private surgeon’s June 2012 opinion that the Veteran had significant level fusions. The VA examiner opined that the Veteran would be unable to work at sedentary jobs where he had to lift, bend, and carry objects due to his multilevel fusion. The examiner noted that the Veteran would need to sit, stand, and walk options at will to relieve his pain. The examiner also noted that the Veteran could only stand for 20 to 30 minutes before he needed to sit and rest. In a September 2012 VA PTSD examination report, the VA examiner opined that the Veteran’s PTSD manifested in occupational and social impairment with reduced reliability and productivity. During the examination, the Veteran reported that he was a wood model maker at a company for 35 years before his job was phased out. He denied any workers’ compensation claims, but he stated that his back caused problems and that he periodically had a lifting restriction. The VA examiner opined that it was less likely as not that the Veteran was unemployable due to the effects of his PTSD. The examiner indicated that the Veteran had more social limitation due to his chronic back pain and associated limitations. The examiner noted that the Veteran had chronic PTSD since the end of his Vietnam service, but he was able to successfully complete 35 years of employment. The examiner related that the reason that the Veteran was unemployable appeared to be directly related to his chronic back pathology. In a February 2013 statement, the Veteran reported extreme pain and limitations due to his back injury and three fusion surgeries. He stated that he was unable to do things he enjoyed like playing with his grandchildren, hunting, or wood working. In a March 2013 VA examination report, the VA examiner opined that the Veteran’s type II diabetes mellitus impacted his ability to work. The examiner noted that the Veteran had frequent blood sugar swings and that he had to check his blood glucose levels four times per day. The examiner also indicated that the Veteran was being considered for an insulin pump to try to normalize his glucose and prevent episodes of hypoglycemia. In a March 2013 VA diabetes neuropathy examination report, the VA examiner opined that the Veteran’s diabetic peripheral neuropathy impacted his ability to work. The examiner noted that the Veteran worked as a model maker and that the neuropathy in his hands affected his ability to perform the fine motor activity with crafting wood. The examiner also noted that the Veteran’s neuropathy in his feet limited his ability to stand or walk within a factory. In a March 2014 statement, the Veteran related that he was unable to perform simple rudimentary tasks without pain and due to his surgeon’s orders. He also stated that he was unable to get through the day without morphine for pain. During the October 2015 hearing, the Veteran explained that he quit working in approximately August 2006. He stated that he worked as a wood model maker until he was eligible to retire at 55-years old. He stated that his back hurt so bad that he was unable to work any longer. He related that he tried to go back to work part-time as a truck driver for a landscaping company, but he only lasted three months due to his back pain. He also indicated that his surgeon told him that he could no longer work. During a March 2017 VA back examination, the Veteran reported that he had functional limitation due to his back pain. He stated that his symptoms worsened with static posture for more than 45 minutes, leaning forward, and walking more than one block. He related that his symptoms improved after lying down and taking opioid or nonsteroidal anti-inflammatory drug (NSAID) medications. In a July 2019 VA back examination report, the VA examiner opined that the Veteran’s low back disability impacted his ability to work. The examiner noted that the Veteran would be unable to lift over 20 pounds, that he could only bend and twist minimally, and that he could not crawl or climb ladders. The examiner also indicated that the Veteran would have to be able to sit and stand at will. The examiner did find that the Veteran could do sedentary or light jobs, but the examiner noted that she did not expect that the Veteran would be able to tolerate more than four hours of continuous work per day. Based on the foregoing, the Board finds that extraschedular consideration of TDIU by the Director of Compensation Service is warranted, and a remand is required for referral to the Director for such consideration. The matters are REMANDED for the following action: The agency of original jurisdiction (AOJ) should refer the claim for entitlement to TDIU based on a single disability to VA’s Director of Compensation and Pension service for consideration under 38 C.F.R. § 4.16 and Bradley v. Peake. If any additional development is deemed necessary, such actions should be completed. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Osegueda, 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.