Citation Nr: 21002405 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-04 150 DATE: January 13, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) on an extraschedular basis from December 15, 2005 to May 5, 2006 is granted. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, the evidence is in relative equipoise as to whether his service-connected disabilities prevented him from securing or following gainful employment as of December 15, 2005. CONCLUSION OF LAW The criteria for the assignment of TDIU, on an extraschedular basis, from December 15, 2005 to May 5, 2006, have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341(a), 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1982 to November 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This matter was previously before the Board in February 2017 wherein the Board granted entitlement to a TDIU on a schedular basis from May 5, 2006. In the February 2017 decision, the Board also found that the Veteran may be entitled to a TDIU on an extraschedular basis and remanded the matter for referral to the Director of Compensation Service for consideration of assignment of an extraschedular TIDU under the provisions of 38 C.F.R. § 4.16(b). The matter returned to the Board in June 2020 and was remanded for Social Security Administration (SSA) records. The matter has returned to the Board for adjudication. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2) (West 2012). The Veteran asserts that he is unable to work due to his service-connected conditions, specifically due to his low back condition and chronic prostatitis. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In the alternative, if the Veteran does not meet the percentage requirements, but is nevertheless rendered unable to obtain or maintain substantially gainful employment by reason or one or more service-connected disabilities, the matter must be submitted to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board 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. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. § 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is "that which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356 (1991). The Board must consider whether the Veteran's service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Generally, the effective date of an award based on an original claim shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefor. 38 U.S.C.A. § 5110(a); see also Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999). However, an effective date for increased disability compensation, which includes a TDIU, may be earlier than the date of receipt of the application. In such cases, the effective date shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if an application for TDIU is received within one year from the increase in disability. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); see also Norris v. West, 12 Vet. App. 413, 420 (1999). If the increase occurred more than one year prior to the claim, the increase is effective the date of claim; if the increase occurred after the date of claim, the effective date is the date of increase. 38 U.S.C.A. § 5110(b)(2); see also Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o). "An effective date earlier than the date of claim may be assigned if an increase in disability is shown within the one year ("look-back") period prior to the receipt of a claim, but not where the increase is shown prior to the one-year period preceding the receipt of the claim." See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As noted, the February 2017 Board decision granted entitlement to a TIDU on a schedular basis from May 5, 2006. In this regard, the February 2017 Board decision explained that while the Veteran filed a claim for increase on July 7, 2006, the evidence showed that the Veteran was entitled to a rating increase for his chronic prostatitis from May 5, 2006, the date of an informal claim for a TDIU. Thus, the RO granted a 60 percent rating for the Veteran’s prostatitis and awarded entitlement to a TDIU from this date. Additionally, the Board found that there was evidence of factually ascertainable unemployability during the preceding year and as such, the issue of TDIU on an extraschedular basis was remanded. In April 2008, the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. He indicated that his service-connected disabilities for prostate gland and lumbar spine prevented him from securing or following any substantially gainful occupation. He noted that his last job required heavy lifting, bending and prolonged standing. He also needed to know where all the restrooms were located while working, due to the nature and complications of his disabilities. Pertinent to the current issue, he last worked full time in December 2004 and worked two months in 2005 from October to December. He also indicated his highest level of education was four years of high school. Prior to May 5, 2006, the Veteran did not meet the schedular criteria for TDIU pursuant to 38 C.F.R. § 4.16(a) as his combined evaluation was 50 percent disabling. Service connection was in effect for chronic prostatitis at 40 percent and degenerative disc disease of the lumbar spine at 10 percent. SSA records show that the Veteran was granted disability benefits for an affective/mood disorder and disorders of the back from 2001 through 2003. He was denied benefits in September 2005. However, the Board is not bound by decisions of other agencies. The Board decision from February 2017 remanded the issue of extraschedular TDIU for an advisory opinion to the Director of Compensation Service as there was evidence that the Veteran could not work due to symptomatology associated with his service-connected disabilities. Thereafter, in an October 2020 memorandum, the Director found that the criteria for TDIU on an extraschedular basis were not met. The Director stated that it was noted that the Veteran’s incontinence affected his ability to work on an assembly line while his back would not allow him to sit for more than thirty-five minutes, stand more than thirty minutes, walk for over an hour or lift over thirty-five pounds. She noted that while it is conceded that the Veteran’s service-connected conditions do affect some activities of daily living, they do not render the Veteran incapable of obtaining or maintaining gainful employment. The Board notes that the Director's decision is not evidence, but, rather, the de facto Agency of Original Jurisdiction decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Turning to the medical evidence, a February 2003 VA treatment record shows that the Veteran is a light industrial worker who had pain in his back for five years and stated that he gets back pain after standing for prolonged periods of time, lifting, bending, and stooping. A May 2003 VA treatment record showed that the Veteran complained of chronic low back pain (8/10) which worsens when he sits/stands in one position for too long and the pain is exacerbated at work. The Veteran was afforded a VA examination for his back and prostatitis in February 2004. The Veteran reported passing urine every hour during the daytime. He has some dysuria and recurrent type of urethritis that occurs with flare-ups every three to four months that last for a period of one to two weeks during which time he is treated with antibiotics. He reported no incontinence. The Veteran reported that the condition effects his work with his last job working in an assembly line assembling pregnancy test kits. He had to keep the assembly line moving but lost his job because he had to go to the bathroom so frequently that he was not able to perform his work appropriately. The VA examiner opined that the patient has difficulty at home because he needs to get up at night four to five times to pass urine and every hour on the hour in the daytime. He has problems at work because he needs to get up every hour to go to the bathroom and therefore this interferes with many types of jobs and he lost his last job because of this problem. A September 2005 VA treatment record notes that the Veteran stated that he cannot stand or sit for very long and he cannot walk for very long distance as his lower back really hurts. A January 2006 VA treatment record notes that the Veteran reportedly has urinary incontinence and wears 5 pads per day and leaks with urgency. Regarding his back disability, the Veteran reported at the examination that he is currently able to sit for about twenty-five minutes, stand thirty minutes, walk about an hour, and lift thirty-five pounds. He has a recurring problem with his back. The VA examiner stated that the Veteran’s degenerative disk disease is likely to be made worse with weakness, pain, fatigability, or incoordination, with frequent heavy lifting or frequent forward bending. In February 2004, Dr. L. T. wrote a letter that confirmed that the Veteran had nocturia six times a night, frequency of seven times a day with intermittent urgency, urgent incontinence with hesitancy and slow urine flow. The final determination with respect to the Veteran's entitlement to a TDIU is an adjudicatory, not a medical, function. In weighing the lay and medical evidence of record, as well as the Veteran's educational background and prior work experience, the Board finds that it is unlikely that the Veteran would be able to find substantially gainful employment given his service-connected disabilities. The Veteran's work experience has largely been in unskilled, physical labor and his lumbar spine disability, along with his chronic prostatitis significantly impaired his ability to do physical labor such that it would not be reasonable to assume he would be able to secure and follow substantially gainful employment in a competitive work environment. Due to his back problems, he cannot sit or stand for long periods of time and is limited to unskilled physical jobs where he must stand for long periods of time. The Veteran’s chronic prostatitis interferes with his work as he must be in the vicinity of a bathroom and wear pads to protect himself. Therefore, based on his service-connected disabilities alone, the Veteran is essentially unemployable and entitlement to a TDIU is warranted from December 15, 2005. Here, the evidence shows that the Veteran was unemployed during the preceding year he was granted TDIU benefits. He last worked in December 2005. Since the evidence shows that the Veteran’s last date of employment was December 14, 2005, he is entitled to an earlier effective date from December 15, 2005, the date after he last worked. In this regard, the effective date for an increased rating for disability compensation (in this case, assignment of a TDIU, which is a form of increased rating) will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date. Based on the foregoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities in combination preclude him from engaging in substantially gainful employment. As such, the Board finds that the criteria for TDIU on an extraschedular basis are met from December 15, 2005, the date after it was factually ascertainable that the criteria for an extraschedular TDIU was met, to May 6, 2006, the day when he was granted a TDIU on a schedular basis. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.