Citation Nr: 21003833 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 14-30 492 DATE: January 22, 2021 ORDER A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) for the period from October 1, 2014 to December 20, 2016 on an extraschedular basis is granted subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT For the period from October 1, 2014 to December 20, 2016, the evidence of record demonstrates that the Veteran’s service-connected disabilities, notably his service-connected low back disability rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW For the period from October 1, 2014 to December 20, 2016, the criteria for a TDIU rating on an extraschedular basis are met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from October 1985 to July 1995. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a February 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. This appeal was most recently before the Board in July 2020. At that time, the Board remanded the appeal to have the RO obtain outstanding Social Security Administration (SSA) records. The Veteran’s SSA records have been obtained and are of record. Thus, the requested development has been accomplished, and the appeal has returned to the Board for further appellate consideration. In connection with this appeal, the Veteran testified at a hearing before the undersigned Veterans Law Judge in November 2016. A transcript of that hearing is of record. Here, the Board has considered entitlement to TDIU because VA Form 27-0820, Report of General Information, received by VA on June 30, 2014, reflects that the Veteran indicated that he was currently (then) unemployed due to his to service-connected low back disability, and that he intended to file a claim for increased rating for his low back disability. Thus, an inferred claim for TDIU under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. The Board notes that the Veteran was in receipt of temporary total disability ratings for periods of convalescence following surgery for his service-connected low back disability for the periods from October 19, 2012 to May 1, 2013, and from March 11, 2014 to October 1, 2014. As discussed in detail below, since the Board is granting TDIU based on the combined effects of multiple service-connected disabilities, notably his low back disability, as well as his radiculopathy, entitlement to TDIU is moot during the periods for which a temporary total rating was in effect under 38 C.F.R. § 4.30. See Bradley v. Peake, 22 Vet. App. 280 (2008). (2011) A total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) for the period from October 1, 2014 to December 20, 2016 on an extraschedular basis is granted. The Veteran seeks entitlement to a TDIU rating for the period prior to December 20, 2016. TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 60 percent or more, and 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 disability or more. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. The current appeal for TDIU stems from a June 30, 2014 increased rating claim for his service-connected low back disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the veteran or reasonably raised by the record, is not a separate claim for benefits, but involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, as part of a claim for increased compensation if entitlement to the disability upon which TDIU is based has already been found to be service connected). The Veteran was granted a TDIU effective December 20, 2016, the date that he met the schedular requirements for TDIU after he was awarded service-connection for a psychiatric disability, and a 70 percent rating was assigned from that date. As noted previously herein, the Veteran was in receipt of temporary total disability ratings for periods of convalescence following surgery for his service-connected low back disability for the periods from October 19, 2012 to May 1, 2013, and from March 11, 2014 to October 1, 2014. Thus, consideration of entitlement to TDIU is moot during the periods for which a temporary total rating was in effect under 38 C.F.R. § 4.30. See Bradley v. Peake, 22 Vet. App. 280 (2008). (2011) For the period prior to December 20, 2016, the Veteran did not meet the schedular criteria for a TDIU because he did not have a disability that is at least 60 percent disabling or a combined disability of 70 percent or more to meet the requirements under 38 C.F.R. § 4.16 (a). under § 4.16(a). Thus, in March 2018, the Board remanded the claim for referral and consideration by the Director, Compensation Service for extraschedular consideration (hereinafter “The Director”). The issue of entitlement to TDIU on an extraschedular basis was referred to the Director of Compensation Service (Director) for extraschedular consideration pursuant to the October 2018 Board remand. In May 2002, the Director denied the Veteran’s request for TDIU on an extraschedular basis. Although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing to 38 U.S.C. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16 (b)); see Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Board must make its own determination as to whether an extraschedular award of TDIU is merited. The Veteran is seeking entitlement to TDIU for the period prior to December 20, 2016 on the basis that he is unable to obtain and maintain substantially gainful employment primarily as a result of the severity associated with his service-connected low back disability. On VA Forms 21-8940, Veterans Application for Increased Compensation Based on Unemployability, received by VA in October 2014 and September 2019, the Veteran indicated that he was unable to work as a pilot for a shipping company because of his service-connected low back disability. He reported that he had last worked on September 13, 2012, that he had left his job as a pilot because of his service-connected low back disability, that he could not find work due to the loss of his Federal Aviation Administration (FAA) medical license, and that he had a college degree and military flight training. In statements, dated in January 2013, November 2013 and January and April 2014, the Veteran, his former co-workers and service members, maintained that his low back disability had continued to increase in severity to the point that it had necessitated numerous surgeries and an inability to work since September 2012. In his testimony before the undersigned, the Veteran maintained that he had been unable to work since September 2012, and that he should receive a total disability rating from September 2012 until June 2013. The Veteran indicated that he manifested back pain which had prevented him from getting out of bed, and that he had to wear a back brace due to his back condition. The Veteran reported that he had been unable to work in his previous occupation as a professional pilot and that he did not see being able to obtain any other potential occupation in light of his back injury. The Veteran’s testimony was corroborated by his wife who reiterated his contentions. In support of the Veteran’s contentions is an April 2014 letter, prepared by his former employer. The Veteran’s former employer reported that he had been unable to work in any capacity since September 13, 2012, that he was currently (then) on a medical leave of absence due to multiple spinal surgeries, and that his estimated return to work date was undetermined. The Veteran’s treating physicians have submitted several statements in support of the Veteran’s claim, notably in November 2013, September 2014, November 2016 and December 2016. In statements, dated in November 2013 and September 2014, Dr. K. F., the Veteran’s personal physician, indicated that the Veteran could work at a desk job or in a simulator where he would be able to stand up, stretch, and walk, but that he was not medically qualified to fly for eight (8) hours or more. Dr. K. F. related that the Veteran had sought treatment in May 2012 for recurrent back pain, that he had undergone back surgery in October 2012 after physical therapy was unsuccessful, and a subsequent surgery in March 2014. Finally, Dr. K. F. opined that the Veteran had been unable to work since September 2012. In a November 2016 opinion, M. S., D. O., reported that he had treated the Veteran since January 2016. Based on his experience, medical history, prescribed medications and recent rheumatology consultation of the Veteran, it was his opinion that the Veteran was unemployable as an airline pilot. The Veteran's status was permanent and that it is at least as likely as not the result of his military service as a fighter pilot with its attendant repetitive traumas. In a December 2016 opinion, M. W., D. C., indicated that the Veteran’s back condition had manifested in back pain and that it physically prevented him from returning to employment as a professional pilot. Dr. M. W. opined that conditions that may lead to minor performance problems in a more traditional workplace could have catastrophic consequences if they impeded an aviator’s ability to complete actions critical to flight. The SSA also found that the Veteran was unable to sustain substantial gainful activity as of January 1, 2014 due to primary and secondary disorders of back and depressive, bipolar related disorders, respectively. The Board finds that overall, the evidence tends to show that the Veteran would not be able to obtain or retain employment, as a result of the functional limitations caused by his service-connected low back disability, as well as his psychiatric disability, for the period from October 1, 2014 (the date the 100 percent rating ended) to December 20, 2016. Accordingly, resolving doubt in the Veteran’s favor, for the period from October 1, 2014 to December 20, 2016, a TDIU is granted. Special Monthly Compensation When a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice, supra. In light of this principle, entitlement to special monthly compensation (SMC) is an inferable issue anytime a veteran is requesting increased benefits. See Akles v. Derwinski, 1 Vet. App. 118 (1991). Therefore, the Board must determine, particularly in light of the grant of entitlement to TDIU herein, whether the issue of entitlement to SMC has been raised by the record. In this case, the Board finds that the issue of entitlement to SMC for the period on appeal has not been raised by the record. Concerning housebound status, the Veteran at no point during the period on appeal had a single disability rated at 100 percent with an additional disability rated at 60 percent or more, and there is no lay or medical evidence of record indicating that the Veteran was housebound due to his service-connected disabilities during the appeal period. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i); see Bradley v. Peake, 22 Vet. App. 280 (2008). The Board is cognizant that the grant of TDIU based on a single disability can satisfy the single disability rated at 100 percent requirement. However, the grant of TDIU here was based on the combined effects of the Veteran’s service-connected low back and psychiatric disabilities, and not solely based on a single disability. Buie v. Shinseki, 24 Vet. App. 242 (2010). Further, while temporary total ratings were in effect during the appeal period, the Veteran did not have a second disability rated at 60 percent or more during that period. 38 C.F.R. §§ 4.29, 4.30. Hence, the Veteran is not eligible for SMC for the period on appeal. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Carole Kammel, 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.