Citation Nr: 21003331 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 09-37 659 DATE: January 21, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted from May 4, 2015, but no earlier. FINDING OF FACT Resolving reasonable doubt in favor of the Veteran, his service-connected disabilities have prevented him from securing or following a substantially gainful occupation from May 4, 2015. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis have been met from May 4, 2015, but no earlier. 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 in the United States Army from December 1981 to December 1985, and from June 1991 to December 1991. Historically, the issue of entitlement to a TDIU was remanded by the Board in May 2013 and July 2014 for additional development. In July 2019, the Board denied the Veteran’s claim for entitlement to a TDIU. In November 2019, the Court of Appeals for Veterans Claims (Court) granted the Veteran’s and the Secretary’s joint motion for remand (JMR), vacating and remanding the Board’s July 2019 decision. In May 2020, the Board remanded the Veteran’s claim for entitlement to a TDIU for referral to VA’s Director of Compensation Service for extraschedular consideration. In a September 2020 decision, the Director determined that a TDIU was not warranted on an extraschedular basis. Although the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board’s ability to review the denial of an extraschedular rating on appeal. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009). For the reasons discussed further below, the Board finds that entitlement to a TDIU on an extraschedular basis is warranted from May 4, 2015. Under 38 C.F.R. § 4.16(a), a total disability rating 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. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. Veterans who are unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities, but who fail to meet the percentage requirements for eligibility for a TDIU under 38 C.F.R. § 4.16(a), may be considered for a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). In this case, the Veteran does not meet the schedular criteria for consideration of a TDIU under 38 C.F.R. § 4.16(a) at any time during the period on appeal. The Veteran has a combined disability rating of 30 percent from February 16, 2006, and 40 percent from October 11, 2012. The Veteran is service-connected for lumbosacral spondylosis with degenerative disc disease with an evaluation of 10 percent from February 16, 2006, and 20 percent from October 11, 2012; radiculopathy of the right and left lower extremities with an evaluation of 10 percent each, respectively, from February 16, 2006; tinnitus with an evaluation of 10 percent from May 4, 2015; hearing loss of the left ear with a noncompensable evaluation from May 4, 2015; and unspecified depressive disorder with a noncompensable evaluation from May 4, 2015. In considering the Veteran’s claim for entitlement to a TDIU, the Court has held that the Veteran’s ability or inability to engage in substantial gainful activity has to be looked at in a practical manner, and the test is whether a particular job is realistically within the physical and mental capabilities of the Veteran. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one, but a factual determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In determining whether unemployability exists, consideration should not be given to the Veteran’s age, or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In Ray v. Wilkie, the Court held that the phrase “unable to secure and follow a substantially gainful occupation” has an economic component and a noneconomic component. The economic component considers the Veteran’s ability to secure and follow an occupation earning more than marginal income. See 38 C.F.R. § 4.16a (marginal employment shall not be considered substantially gainful employment). The noneconomic component considers such factors as the Veteran’s employment history, education, skill, training, physical ability, and mental ability. The Veteran reported that he was last employed in 2005. Therefore, the Veteran meets the economic component for consideration of a TDIU for the entire period on appeal. At issue is whether the Veteran was unable to secure or maintain substantially gainful employment solely due to service-connected disabilities. In reviewing the relevant evidence pertaining to the Veteran’s claim for entitlement to a TDIU, the Veteran submitted private treatment records, including a March and October 2004 radiology report documenting degenerative disc disease of the lumbar spine, and a September 2005 radiology report documenting (nonservice-connected) degenerative changes of the cervical spine. In association with the Veteran’s treatment for neck pain in September 2005, the Veteran submitted a note written by a private treatment provider indicating the Veteran was unable to work from September 26, 2005 to October 17, 2005. In a March 2005 VA neurology consult, the Veteran reported low back pain for the last 30 years that had increased in severity in the previous three years. The provider advised the Veteran to avoid lifting heavy objects, twisting his back, or undertaking prolonged car rides. See also April 2010 VA neurology consult. In a May 2005 VA pain medicine consult, the Veteran reported continuous back pain that increased in severity with walking, bending, and sitting for extended periods of time. The Veteran was afforded a VA back examination in August 2006. The Veteran reported constant low back pain that he described as a dull ache, and which he rated at 7/10. See also December 2007 VA pain medicine consult. The Veteran reported pain radiating down both legs, especially the right leg. The Veteran reported flare-ups of his low back disability, which he rated at 10/10, and described as feeling like sticking a knife in the back. The Veteran reported experiencing flare-ups one to two times per week, and lasting for a day. The Veteran reported his low back pain was precipitated by standing, sitting, lifting, and walking for more than one hour. The Veteran reported that laying down on his side alleviated his low back pain. The Veteran reported an increase in pain with forward flexion during a flare-up. The Veteran reported he was able to walk up to half a mile, and that he had a problem with falling. In May 2007, the Veteran reported he was unemployable due to his degenerative disc disease, which he indicated had progressed to his lower neck area. See May 2007 notice of disagreement; see also July 2007 correspondence from the Veteran. The Veteran indicated that his last employment was terminated due to his (nonservice-connected) neck problems, and that employers would not hire an individual with back problems. See also July 2013 VA Form 21-4138; see also November 2013 VA Form 21-4138. In Social Security Administration records associated with the claims file, the Veteran indicated his back disability limited his functional abilities. See September 2008 Function Report. The Veteran reported his daily activities included making meals, cleaning dishes, watching television, reading, and helping his two children with schoolwork, and reading to or playing with his children. The Veteran reported he was unable to stand at the stove for long periods of time. The Veteran reported he was able to sweep, mop, dust, wash dishes, and clean his residence. The Veteran indicated he had to stand after sitting for about one hour due to his back disability. The Veteran reported that lifting, squatting, bending, standing, reaching, sitting, walking, and kneeling resulted in pain in his back. The Veteran reported his back pain sometimes lasted for several days, and reached a level of severity that made it difficult to walk. The Veteran reported he followed written and verbal instructions well, that he got along well with authority figures, and that he was good at handling stress and changes in routine. The Veteran reported his employment history consisted of primarily physical jobs, including custodial work, cook, construction laborer, painter, cashier, and store manager. In an October 2012 VA back examination, the Veteran reported a history of working full-time in a variety of heavy construction and laboring jobs from 1985 through 2003 or 2004. The Veteran reported he was no longer able to do labor intensive work in 2003 or 2004 due to increasingly severe low back pain. The Veteran reported he worked in a fast food restaurant, which was less strenuous, but still bothered his back. The Veteran reported his last job was terminated due to neck arthritis and pains in his upper right extremity. The Veteran reported constant mild low back pain, and flare-ups of his low back disability with twisting. The Veteran reported his low back pain limited him from standing in place for more than five minutes, and sitting for more than one hour. The Veteran reported occasional near-falls when rising from a chair without support. The Veteran denied the use of assistive devices. The Veteran reported lying down briefly every day to help alleviate back pain. The Veteran reported some days he was barely mobile due to low back pain, but that he was never medically incapacitated and never sought emergency room treatment. The examiner reported the Veteran had only mild radiculopathy of the bilateral extremities. In an application for increased compensation based on unemployability, the Veteran reported he became too disabled to work due to degenerative disc disease in September 2005. See August 2013 VA Form 21-8940. The Veteran reported his highest level of education was one year of college. The Veteran indicated he had sought other employment since September 2005, including custodial work, and employment as a cashier and stock person. In a January 2015 VA back examination, the Veteran reported constant central low back pain. The examiner indicated the Veteran was most concerned about his (nonservice-connected) cervical neck pain with radiation to the shoulder blades and right arm. The Veteran reported he would be laid up in bed for 3 days with any twisting, bending, or extended standing. The Veteran refused to perform any range of motion testing. The examiner reported that localized tenderness of the thoracolumbar spine did not result in abnormal gait or spinal contour. The examiner reported the Veteran had mild radicular pain of the right lower extremity, and noted the Veteran had severe (nonservice-connected) peripheral vascular disease of the lower extremities. In a July 2017 VA back examination, the Veteran reported a constant dull aching discomfort in his low back that increased in severity with weight bearing and physical activity. The Veteran reported transient sharp low back pains that occurred intermittently on a daily basis during both rest and activity. The Veteran reported pain and difficulty with sitting and rising, and that he limited those activities to tolerance. The Veteran reported his low back disability limited his ability to lift, carry, bend, and lean. The Veteran declined to perform range of motion testing due to pain in his back. The examiner observed the Veteran ambulated with a forward leaning posture, and slow, stiff and guarded steps. Additionally, the examiner observed the Veteran used chair arms to assist with sitting and rising, with apparent discomfort. With respect to the Veteran’s other service-connected disabilities, he was awarded service-connection for a left ear hearing loss disability and tinnitus from May 4, 2015. In a June 2015 VA hearing loss and tinnitus examination, the Veteran reported his hearing loss resulted in an inability to hear conversations, and tinnitus resulted in increased difficulty with hearing. The Veteran is also service-connected for unspecified depressive disorder from May 4, 2015. In a June 2015 VA mental disorders examination, the Veteran reported he had few friends, and indicated that he did not do any activities with friends. The Veteran reported he occupied his day watching television and going outside to smoke cigarettes. The Veteran reported he was living with the mother of his two children because he needed a place to reside, and that he had a pretty good relationship with their children. The Veteran reported he worked in construction until about 1999 or 2001, and that physical pain caused him difficulty at work. The Veteran reported he began to feel depressed when he was no longer able to work in construction due to pain. The Veteran reported nearly daily episodes of mild depression, where he had less interaction with people, and a decrease in appetite. The Veteran reported he avoided people altogether when he was physically exhausted or in pain due to being short-tempered. The Veteran reported he experienced moderate depression approximately twice a month that would last for one to one and a half days. The Veteran reported he would avoid any contact with people, that he would sleep all day, and eat very little. In considering the medical and lay evidence over the course of the period on appeal, the Board resolves reasonable doubt in favor of the Veteran in finding that he has been unable to secure or follow substantially gainful employment due to service-connected disabilities from May 4, 2015. The Board recognizes that the Veteran has asserted he was unemployable due to his back disability since 2005, and that he was awarded service connection for lumbosacral spondylosis with degenerative disc disease and radiculopathy of the bilateral lower extremities from February 16, 2006. See also Delrio v. Wilkie, 32 Vet. App. 232 (2019) (the effective date for a TDIU cannot be earlier than the effective date of service connection for the underlying disability or disabilities). However, the Board finds an extraschedular TDIU is not warranted prior to May 4, 2015. In this regard, the Board notes that Veteran repeatedly indicated that he was unable to continue his last employment due to his nonservice-connected cervical spine disability. Additionally, while the medical evidence of record indicates the severity of the Veteran’s radiculopathy of the bilateral lower extremities is at most mild, his nonservice-connected peripheral vascular disease was reported as severe, resulting in rest pain and limiting his walking to 50 feet before pain. See March 2010 VA note; see also June 2015 VA vascular diseases examination. The Board does not question that the Veteran’s service-connected lumbar spine disability with associated radiculopathy of the bilateral lower extremities contributed to his functional impairment throughout the period on appeal, and would have limited him from physically demanding occupations. However, the Board finds the evidence of record does not support a determination that he was unable to secure or maintain substantially gainful employment solely due to such service-connected disabilities. With respect to the Veteran’s physical abilities, the Veteran indicated in September 2008 that daily activities included preparing meals and washing dishes, watching television, reading, helping his two children with schoolwork, and reading to or playing with his children. See September 2008 Function Report. The Veteran reported he was able to sweep, mop, dust, and clean his residence once a week for 30 to 60 minutes. The Board finds such activities are consistent with sedentary-type employment in which the Veteran would be allowed to sit and adjust his position as needed, without requiring lifting, squatting, kneeling, bending, or prolonged walking or standing. Such is also consistent with the Veteran’s October 2012 report that he was no longer able to do labor intensive work, and his January 2015 report that bending and twisting resulted in pain and functional loss/impairment. The Board has considered that the Veteran’s employment history consisted of primarily physical jobs, including custodial work, cook, construction laborer, painter, cashier, and store manager. However, for the period on appeal prior to May 4, 2015, the evidence supports a finding that the Veteran was capable of substantial gainful employment not involving physical labor, given his education, including one year of college, and his self-reported ability to follow written and verbal instructions well, get along well with authority figures, and handle stress and changes in routine. Resolving reasonable doubt in favor of the Veteran, the Board finds that he is unable to secure and follow a substantially gainful occupation due to his combined service-connected disabilities from May 4, 2015, and an extraschedular TDIU is warranted. As discussed above, the Board finds that the Veteran’s service-connected lumbar spine disability with associated radiculopathy of the bilateral lower extremities would limit him from physically demanding occupations. Prior to May 4, 2015, the Board finds the Veteran had the mental and physical ability, and education and skills to engage in sedentary-type employment in which the Veteran would be allowed to sit and adjust his position as needed, without requiring lifting, squatting, kneeling, bending, or prolonged walking or standing. From May 4, 2015, the date the Veteran was awarded service connection for unspecified depressive disorder, the Board finds the Veteran’s ability to secure and follow a substantially gainful occupation, even employment that is not physically demanding, is not realistically within his physical and mental capabilities. Delrio, 32 Vet. App. at 248. With respect to the Veteran’s mental ability, the Board finds the Veteran would be limited from occupations that require interaction with people due to his service-connected depressive disorder. Additionally, the Veteran’s ability to secure and follow a substantially gainful occupation would be impaired by his short-temper and sleeping throughout the day due to his service-connected depressive disorder. Resolving reasonable doubt in favor of the Veteran, the Board finds that he is unable to secure and follow a substantially gainful occupation due to his combined service-connected disabilities, including his service-connected lumbar spine disability with associated radiculopathy of the bilateral lower extremities, unspecified depressive disorder, tinnitus, and left ear hearing loss disability. Accordingly, an extraschedular TDIU is granted from May 4, 2015. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Mask, 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.