Citation Nr: 21000914 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 10-41 814 DATE: January 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis due exclusively to service-connected low back disability is granted for the period prior to August 30, 2017, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to special monthly compensation (SMC) at the housebound rate effective August 30, 2017 is granted subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Resolving doubt in the Veteran’s favor, the Veteran’s service-connected low back disability prevents him from obtaining and maintaining substantially gainful employment consistent with his education and employment history. 2. As of August 30, 2017, the Veteran has a single service-connected low back disability rated as 100 percent disabling, and the combined rating of the Veteran’s other service-connected disabilities is at least 60 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU on an extraschedular basis have been met for the period prior to August 30, 2017. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 2. From August 30, 2017, the criteria for special monthly compensation at the housebound rate are met. 38 U.S.C. § 1114 (s)(1); 38 C.F.R. § 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1971 to January 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) granting service connection for a low back disability. The Veteran appealed the initial rating assigned to his low back disability. A March 2017 Board remand found that the issue of entitlement to a TDIU had been raised by the record as part and parcel of the appeal for an increased rating for the low back disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU on an extraschedular basis based solely upon the low-back disability was remanded by the Board in July 2018 to allow the Agency of Original Jurisdiction (AOJ) to refer the matter to the Director, Compensation Service for extraschedular consideration. The Board finds there has been substantial compliance with its remand directives for the claims decided herein. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a TDIU on an extraschedular basis The Veteran contends that his service-connected low back disability has rendered him unemployable. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Where a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). It is the established policy of the Department of Veterans Affairs that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension Service, for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will 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). In exceptional circumstances, where the Veteran does not meet the aforementioned schedular requirements, a total rating may nevertheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director, Compensation Service (Director), for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). In this case, the Veteran is service-connected for migraine headaches (50 percent from August 30, 2017), L5-S1 spondylosis (40 percent from December 24, 2003), radiculopathy of the right upper extremity (40 percent from August 30, 2017), left eye central corneal opacity (30 percent from April 21, 2017), radiculopathy of the left upper extremity (30 percent from August 30, 2017), degenerative arthritis of the cervical spine (20 percent from August 30, 2017), radiculopathy of the right lower extremity (10 percent from December 24, 2003), residuals of a fracture of the sixth and seventh ribs (noncompensable from January 6, 1972). The combined schedular rating is 50 percent from December 24, 2003 to April 21, 2017, 60 percent from April 21, 2017 to August 30, 2017, and 100 percent from August 30, 2017. Entitlement to a TDIU based upon the combined effects of the Veteran’s service-connected disabilities is moot from August 30, 2017 because the Veteran already has a total combined disability rating. Although the prior Board remand found that the TDIU claim initially was raised as part and parcel only to his back claim, whether a TDIU is warranted must be based on consideration of all his service-connected disabilities. Allport v. Wilkie, 2019 U.S. App. Vet. Claims LEXIS 849, No. 18-2000 (May 29, 2019) (non-precedential); Bethea v. Derwinski, 2 Vet. App. 252 (1992) (persuasive non-precedential decisions may be cited). However, given the specific facts of this case, the Board will consider entitlement to a TDIU based upon the low back disability alone throughout the period on appeal, including from August 30, 2017, because if the Veteran is totally disabled due to his low back disability alone, then he may be entitled to special monthly compensation at the housebound rate under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). The July 2018 Board remand referred the Veteran’s claim for a TDIU to the Director, Compensation and Pension Service, for consideration of a TDIU award under 38 C.F.R. § 4.16(b). An August 2020 Administrative Review opinion noted that the Veteran had a service-connected low back disability incurred in service, and that he had also incurred post-service low back disabilities. The opinion recognized that there is no evidence to suggest that a distinction can be made between the symptoms produced by the low back disability incurred in service and subsequent reinjury of the low back, but went on to find that none of the available evidence supports the Veteran’s contention that, apart from post-service back injuries, his in-service incurred back condition prevents all types of gainful activity. The August 2020 opinion does not recognize that when it is not possible to separate the effects of a service-connected and non-service connected disability, such signs and symptoms should be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181 (1998). A November 2020 advisory opinion avoided this Mittleider error, but still found that the Veteran was not entitled to a TDIU. The November 2020 opinion concluded that while the records show there is back pain with some functional impairment, the record does not show the condition to be totally disabling or causing symptoms that would make the Veteran incapable of substantially gainful employment. Although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board’s jurisdiction to review the denial of an extraschedular rating on appeal. Floyd v. Brown, 9 Vet. App. 88 (1996); see also Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Board must now determine whether the Veteran is unemployable by reason of his service-connected low back disability alone, taking into consideration his educational and occupational background. Unfortunately, the November 2020 advisory opinion did not discuss the Social Security Administration (SSA) determination that is the basis of the Veteran’s claim, and of the July 2018 referral. A June 1993 SSA decision noted that the Veteran had filed for disability benefits due to his low back disability. The SSA found that the record contains sufficient evidence to establish the existence of a chronic, painful impairment of his low back which would make it extremely difficult for him to meet the basic exertional demands of work in regard to standing, walking, lifting and carrying so as to necessarily preclude him from work activity beyond the sedentary exertional level. The SSA concluded that the Veteran’s ability to perform even sedentary work is compromised substantially by his inability to sit at length and concentrate on a sustained basis. The SSA concluded that with the combined restrictions, there are no jobs existing in significant numbers in the national economy that the Veteran could perform. The SSA also noted that any of the Veteran’s transferable skills that may exist are essentially useless. The VA examinations of record do not discuss the Veteran’s ability to sit for long periods of time. A December 2007 VA examination found that the Veteran is not able to walk for a full mile, and suffers moderate lumbar pain. An August 2016 examination indicates that Veteran reported that he cannot do any real lifting and cannot drive far, although he indicated that this driving limitation is due to falling asleep behind the wheel. The examination found that the Veteran’s chronic and progressive pain leads to weakness that will interfere with his home and work chores, shopping and exercise activities. The Veteran’s lifting was limited to 20 pounds. The Veteran’s November 2012 and April 2017 TDIU applications indicate that his education is either a high school degree or a Graduate Equivalency Degree (GED), and that his training was as an automobile mechanic and in automobile body work. The June 1993 SSA decision found that the Veteran’s past relevant work experience was as a laborer and automobile mechanic. The record reflects that the Veteran’s low back disability causes substantial limitations in the Veteran’s ability to perform physically demanding work, which would prevent him from obtaining and maintaining substantially gainful employment as a laborer or automobile mechanic. The issue thus becomes whether the Veteran’s service-connected low back disability prevents him from working in a position that is not physically demanding, but does not require an advanced degree, such as answering phones or telemarketing work. The Board recognizes that the June 1993 SSA finding that the Veteran’s ability to perform even sedentary work is substantially compromised is based upon both an inability to sit at length due to the low back disability and an inability to concentrate on a sustained basis. The Veteran’s difficulty concentrating, per the SSA, is due to a psychiatric disability. The Veteran is not currently service-connected for any psychiatric disability. Therefore, the Board may only consider the Veteran’s inability to sit at length in determining whether the Veteran is entitled to a TDIU. An April 1992 SSA evaluation found that the Veteran would be able ot sit about 6 hours in an 8-hour workday. An undated medical employability evaluation as to the back found that the Veteran suffered from greater limitations, such that he was precluded from preforming physical work but would be able to perform part-time office work, sitting for a few hours a day. Part-time office work is not substantially gainful employment as it is highly unlikely that part-time entry-level work for a few hours per day would be more than marginal. Therefore, resolving reasonable doubt in the Veteran’s favor, his low back disability prevents substantially gainful work. The Board concludes that, resolving doubt in the Veteran’s favor, the evidence of record indicates that the Veteran’s low back pain alone prevents the Veteran from obtaining or retaining substantially gainful employment consistent with his education and occupational experience. Entitlement to a TDIU based on the Veteran’s service-connected low back disability alone is granted on an extraschedular basis. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). 2. Entitlement to SMC at the housebound rate The record has raised the issue of entitlement to SMC at the housebound rate, effective August 30, 2017. The Board is granting entitlement to special monthly compensation in full, which means that there is no prejudice to the Veteran in adjudicating this issue even though it has not been considered by the AOJ in the first instance. Special monthly compensation (SMC) at the 38 U.S.C. § 1114 (s) rate is payable where a veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Where there is no one disability evaluated under the rating schedule as 100 percent disabling, a TDIU due to a single service-connected disability will qualify. As a result of the Board’s decision here to grant entitlement to a TDIU on an extraschedular basis based upon the Veteran’s service-connected low back disability alone, the Veteran has a single disability rated as 100 percent disabling. As of August 30, 2017, the combined rating of the Veteran’s other service-connected disabilities is at least 60 percent. 38 C.F.R. §§ 4.25, 4.26. As such, the criteria for entitlement to SMC at the 38 U.S.C. § 1114(s) or housebound rate are met, and SMC at the housebound rate is warranted effective August 30, 2017. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Budd, 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.