Citation Nr: 21003952 Decision Date: 01/25/21 Archive Date: 01/25/21 DOCKET NO. 09-38 373 DATE: January 25, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from July 10, 2005 to August 3, 2015, is granted. FINDING OF FACT From July 10, 2005 to August 3, 2015, the Veteran’s service-connected disabilities rendered him unable to engage and retain substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU from July 10, 2005 to August 3, 2015, have been met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.155, 3.340, 3.341, 3.400, 4.15, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1972 to March 1973, February 1977 to August 1978, and November 1978 to October 1984. This case comes before the Board of Veterans’ Appeals (Board) on appeal from January 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In January 2008, the RO denied entitlement to a TDIU and awarded service connection for left leg radiculopathy assigning an initial 20 percent rating under Diagnostic Code 8520 (sciatic nerve), effective from July 10, 2006. The Veteran expressed disagreement with the RO’s determination regarding a TDIU, among other claims, and the present appeal ensued. This appealed issue was previously before the Board in June 2013, September 2016, and May 2018, when it was determined that a remand was necessary in or to allow VA to fulfill its duty to assist the Veteran. The Board prior remand directives and the actions of the Agency of Original Jurisdiction (AOJ) will be discussed below. The Veteran’s appeal has been returned to the Board for further appellate consideration. As noted by the Board in the August 2019 remand, the AOJ granted entitlement to a TDIU from August 3, 2015, and this award was later rendered moot from January 20, 2016, to the present due to the assignment of a 100 percent combined evaluation. As such, the issue before the Board only entails entitlement to a TDIU prior to August 3, 2015. Entitlement to a TDIU due to service-connected disabilities prior to August 3, 2015 As an initial matter, the Board notes that the Veteran filed his claim to establish TDIU in July 2006, during the pendency of his appeal for several issues seeking increased evaluations. As such, the TDIU issue is considered to be part and parcel of each of these claims seeking increased evaluations, and thus, entitlement to TDIU is for consideration for the entirety of the appeal period for the earliest filed of these issues seeking increased evaluations. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In the present case, based on the effective date assigned for the Veteran’s claim for increase rating for his service-connected back disability, July 10, 2005, which remains on appeal, the appeal period under consideration for TDIU is from July 10, 2005 to August 3, 2015, which represents the date of his increased rating claim, plus the one-year "look back" period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). The Veteran currently has a TDIU effective August 3, 2015. Prior to August 3, 2015, the Veteran had multiple service-connected disabilities. The Veterans coronary artery disease was rated 30 percent; degenerative joint disease and left leg radiculopathy, sciatic nerve associated with degenerative joint disease were rated 20 percent. From May 11, 1992 the Veteran had a combined rating of 10 percent. From July 10, 2006 the Veteran had a combined rating of 40 percent. And from January 24, 2014 the Veteran had a combined rating of 60 percent. Given that schedular TDIU requires either one disability rating of 60 percent disabling, or a single disability rated at least 40 percent disabling with sufficient additional disabilities to reach a combined rating of 70 percent, the Veteran did not meet the schedular criteria for a TDIU prior to August 3, 2015. 38 C.F.R. § 4.16(a). Nonetheless, the record suggested that the Veteran may have been unable to maintain substantially gainful employment even prior to August 3, 2015; thus, the appeal was referred to the Director of Compensation Service to determine if a TDIU was warranted on an extraschedular basis prior to August 3, 2015. In October 2020, the Director of Compensation Service provided a negative response, indicating that there was not sufficient evidence to grant on a extraschedular basis and that it was therefore the rating agency’s responsibility to determine whether the Veteran was unable to secure and follow a substantially gainful occupation as a result of service-connected disabilities. Following this decision, the RO addressed the issue in an October 2020 Supplemental Statement of the Case. The Board notes that the decision of the Director of Compensation Service is evidence but not dispositive on the Board’s decision. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015) (holding that a decision of the director of the Compensation Service concerning entitlement to TDIU on an extraschedular basis is not evidence and it is legal error for the Board to assign weight to the director’s decision in reaching its own conclusion on entitlement to TDIU pursuant to 38 C.F.R. § 4.16(b)); see also Kuppamala v. McDonald, 27 Vet. App. 443, 458 (2015) (the Board reviews the entirety of the Director’s decision de novo and is thus authorized to assign an extraschedular rating when appropriate). Having reviewed the evidence of record, the Board finds that a TDIU is warranted on an extra-schedular basis from July 10, 2005 to August 3, 2015. The Veteran has consistently asserted that he worked in heating and air conditioning from 1997 until 2003. He last worked in 2003 as the work became too demanding for his disabilities and he became unable to perform the requirements of the job. He contends that his back and legs hurt all the time and he is unable to sit for long periods. The Board affords great probative weight to the Veteran’s statements describing his impairments on his ability to work. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). There are multiple medical opinions which address the Veteran’s assertion, and the Board will address them in turn. Initially, in July 2006, a private chiropractor evaluated the Veteran. The provider discussed the Veteran’s back symptoms, including shooting, throbbing and aching pain, and noted that activities such as standing, sitting, driving, and walking aggravated the pain. The chiropractor further noted that the Veteran had a cardiac disability with numerous stents. The provider concluded that the Veteran was unable to do any work as he was clinically unstable at that time. In January 2007 the Veteran was provided with a VA medical examination for his back and heart disabilities. The examiner found that the Veteran was unable to walk more than a few yards, noting that the Veteran would stay in bed or on the sofa most of the time. Further, the examiner noted that during back disability flareups the Veteran was impacted with a 90 percent limitation and impairment on function. The examiner stated that with the heart disability alone, the Veteran would be unable to perform physical labor, but would be able to perform sedentary labor. However, the examiner opined that the Veteran having both heart and back disabilities, was unable to perform both physical and sedentary work. The Veteran underwent a VA examination in September 2013 for his back disability. The examiner noted that the Veteran’s back disability did not impact his ability to work. The examiner did not consider the heart disability in addition to the back disability when determining the impact on the Veteran’s ability to secure and follow substantially gainful employment. The Veteran underwent VA examinations for his heart disability in December 2014 and August 2015. The same examiner conducted both examinations, and each time concluded the Veteran’s heart disability rendered him unable to do physically demanding work. The Veteran was found able to do sedentary work. However, these examinations did not consider the Veteran’s back disability in addition to the heart disability when determining the ability for the Veteran to secure employment. In light of the Veteran’s credible statements and medical opinions considering the totality of the impact of the Veteran’s service connected disabilities on substantially gainful employment, the Board finds that his overall disability picture prior to August 3, 2015, does not appear to be different than the disability picture he had after that date, for which he has already been granted a TDIU. As such, the Board finds that the record supports that the Veteran’s back and heart disabilities impaired his ability to obtain and follow substantially gainful employment prior to August 3, 2015, on an extraschedular basis. As the Board has granted a TDIU prior to August 3, 2015, on an extraschedular basis, the remaining issue is the appropriate effective date. As previously mentioned, based on the effective date assigned for the Veteran’s claim for increase rating for his service-connected back disability, July 10, 2006, which remains on appeal, the appeal period under consideration for TDIU is from July 10, 2005 to August 3, 2015, which represents the date of his increased rating claim, plus the one-year "look back" period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. W. Morgan, 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.