Citation Nr: 21003690 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 11-26 039 DATE: January 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis prior to September 27, 2011 is denied. FINDINGS OF FACT 1. Prior to September 27, 2011, the Veteran was service connected for cervical spondylosis rated 30 percent disabling, bilateral hearing loss rated 20 percent disabling; and L-2 compression fracture with degenerative osteoarthritis rated 10 percent disabling; right ankle sprain residuals rated noncompensable, and a left hip surgical scar rated noncompensable. His combined rating was 50 percent. 2. The preponderance of the evidence is against finding that the Veteran’s service-connected disabilities were so severe as to preclude all forms of substantially gainful employment prior to September 27, 2011. CONCLUSION OF LAW The criteria for assignment of an extraschedular TDIU prior to September 27, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1983 to January 1984. He served in the Army National Guard with periods of active duty from September 10, 1963 to September 12, 1963, June 1964 to December 1964, and December 1979 to December 1980. This matter is before the Board of Veterans’ Appeals (Board) on appeal of a May 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In August 2015, the Board, in pertinent part, found that a claim for a TDIU was raised as part of a pending increased rating claim and remanded the TDIU claim to the agency of original jurisdiction (AOJ) for further development. In March 2017, the Board again remanded the TDIU issue for further development. In a May 2019 decision, the Board granted TDIU, effective September 27, 2011, and remanded the issue of entitlement to a TDIU prior to September 27, 2011. In June 2020, the Board again remanded the issue of entitlement to a TDIU prior to September 27, 2011. The issue has now been returned to the Board. Entitlement to a TDIU prior to September 27, 2011 is denied. The Veteran contends that his service-connected disabilities precluded any form a gainful employment prior to September 27, 2011. In his June 2019 application for TDIU the Veteran reported last working full time as a helicopter pilot in December 2010. VA will grant a total disability evaluation based on individual unemployability due to service-connected disorders when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran’s background including his or her employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether an appellant is entitled to a total disability evaluation based on individual unemployability, neither his nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. § 4.19. Prior to September 27, 2011, the Veteran was service connected for cervical spondylosis rated 30 percent disabling; bilateral hearing loss rated 20 percent disabling; an L-2 compression fracture with degenerative osteoarthritis rated 10 percent disabling; right ankle sprain residuals rated noncompensable; and a left hip surgical scar rated noncompensable. His combined rating was 50 percent. 38 C.F.R. § 4.25. Therefore, the threshold percentage requirements for an award of a total disability rating based on individual unemployability were not met prior to September 27, 2011. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The issue of entitlement to an extraschedular TDIU prior to September 27, 2011 was remanded by the Board in May 2019 with directions to refer the case to the Director of Compensation. In January 2020, the Director of Compensation determined that the evidence did not support an extraschedular TDIU prior to September 27, 2011 and the case was returned to the Board. In June 2020 the Board found that additional private medical records were outstanding, and again remanded the case with instructions to request that the Veteran provide a VA Form 21-4142 authorizing VA to obtain relevant treatment records from all non-VA medical providers, including Dr. S.C., Dr. D.J.T. and Dr. H.B. as well as for Dale Medical Center and New Horizons Wellness. Thereafter, the claim was again to be referred to the Director of Compensation for consideration of the new evidence. In June, July, and August 2020 the Veteran was asked to provide authorization for VA to obtain the identified records. The Veteran did not respond to those requests and no additional relevant records were obtained. The Veteran has a duty to cooperate in the development of his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991) (noting that the duty to assist is not a one-way street). As the Veteran did not respond to VA’s requests for authorization to obtain the identified outstanding medical records, the Board will proceed to adjudicate the claim without those records. Notably, the June 2020 Board remand directed that the claim be returned to the Director of Compensation service. Although this directive was not completed, the failure to complete and return VA Form 21-4142 means that no additional relevant medical evidence was received which was not considered by the Director of Compensation in January 2020. Accordingly, another remand solely to instruct the Director of Compensation to reconsider the same evidence would only serve to further delay the claim while providing no further benefit to the Veteran. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (holding that remand is unnecessary where it would impose additional burdens on the Board with no benefits flowing to the veteran). The Board finds there was substantial compliance with the remand directives and will proceed to adjudicate the issue on the merits at this time. On VA examination in February 2009, the Veteran’s bilateral hearing loss was noted to impair his ability to understand conversations. A February 2009 VA spine examiner noted that the Veteran’s neck disability caused problems lifting more than 10 pounds and that the Veteran was only able to stand for a few minutes. In a February 2010 statement, the Veteran reported that he could not function in most of the activities and duties that he once did due to his neck and low back symptoms. April 2010 private medical records note that the Veteran was denied clearance to return to regular flight duties. In a March 2010 statement, the Veteran reported being “temporarily disabled from my employer” due to his service-connected neck disability. In August 2018, VA obtained a retrospective medical opinion regarding the functional impact of the Veteran’s service-connected disabilities prior to September 27, 2011. The examiner opined that prior to September 27, 2011 the Veteran’s neck disability prevented him from working in an occupation requiring recurrent movement of the neck and head, such as being a professional driver. His low back condition prevented him from performing lifting, carrying or bending at the waist. His hearing loss prevented him from working in an occupation that required auditory acuity to ensure safety of the claimant or the general public, including radiophonic communications and the operating machinery or vehicles. The Veteran’s ankle disability prevented him from working in an occupation that required prolonged walking or standing. The left hip surgical scar had no impact on employability. The examiner concluded that none of the Veteran’s service-connected disabilities would prevent employment such as office or administrative work. The examiner noted that his opinion was based on a review of the available medical evidence pertaining to the period in question, the fact that the service-connected disorders would be expected to worsen over time, as well as the naturally expected limitations such conditions would have on function and employability. In a June 2019 application for a TDIU, the Veteran reported last working as a helicopter pilot from December 1996 to December 2010 and noted that he had not worked or attempted to work thereafter. The veteran reported two years of college education. While the relevant evidence demonstrates severe impairment of the Veteran’s ability to work prior to September 27, 2011, the evidence preponderates against finding that the service-connected disorders precluded all forms of substantially gainful employment during that time. While the evidence does indicate that the Veteran was unable to continue in his past work as a helicopter pilot starting in December 2010, he reported that he did not attempt to secure any other employment at that time. While job-seeking is not required for a TDIU, the medical evidence pertinent to this period preponderates against finding that the Veteran’s service-connected disabilities would have precluded work with limited physical requirements, and which did not require auditory acuity to ensure safety of the claimant or the general public, such as clerical or administrative work. The evidence further preponderates against finding that the Veteran lacked the skills or education necessary to secure or perform clerical or administrative work prior to September 27, 2011. In this regard, the Veteran reported two years of college education, and there is no evidence to indicate that his education or occupational history would have prevented him from obtaining clerical or administrative employment consistent with the limitations of his service-connected disabilities. The Board acknowledges that in its June 2020 remand, the Board discussed a November 2014 VA examination indicating that the Veteran’s cervical spine disability interfered with sitting. However, the available evidence relevant to the period prior to September 27, 2011 does not reflect that the cervical spine disability interfered with sitting at that time. Accordingly, prior to September 27, 2011 the evidence preponderates against finding that the cervical spine disability would prevent the Veteran from obtaining or maintaining an occupation involving prolonged sitting. (Continued on the next page)   Based on the foregoing, the totality of the evidence preponderates against finding that the Veteran’s service-connected disabilities precluded him from obtaining or maintaining substantially gainful employment consistent with his educational and occupational experience prior to September 27, 2011. Accordingly, entitlement to a TDIU on an extraschedular basis prior to September 27, 2011 is denied. LAURA E. COLLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Paul J. Bametzreider 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.