Citation Nr: 21062053 Decision Date: 10/06/21 Archive Date: 10/06/21 DOCKET NO. 12-26 880 DATE: October 6, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted effective June 26, 2009, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT The probative evidence of record indicates that since June 26, 2009, the Veteran's service-connected disabilities rendered him unable to obtain and maintain gainful employment consistent with his education, training, and work experience. CONCLUSION OF LAW The requirements to establish entitlement to an effective date of June 26, 2009, but no earlier, for the award of a TDIU have been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.1, 3.156, 3.400, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from August 1992 to August 1996 and from February 2002 to July 2003. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in March 2021, when it was remanded for additional development. 1. Entitlement to a TDIU prior to January 10, 2018 A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation claims therefore apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). The effective date of an award for the increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application is received within one year from such date. Otherwise, the effective date will be the date VA received the claim for increase, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a),(b)(2) (2012); 38 C.F.R. § 3.400(o) (2020); Hazan v. Gober, 10 Vet. App. 511 (1997); Harper v. Brown, 10 Vet. App. 125 (1997). Regarding the criteria for TDIU, VA will grant a TDIU when the schedular rating is less than total and the evidence shows that a veteran is precluded, due to a service-connected disability or disabilities, from obtaining and maintaining any form of substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough, as a high rating is itself recognition that the impairment makes it difficult to obtain or keep employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Thus, the ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether he or she can find employment. Id. If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability for a combined rating to 70 percent or more. 38 C.F.R. § 4.16(a) (2020). Under 38 C.F.R. § 4.16(a)(3) (2020), disabilities resulting from a common etiology or affecting a single body system will be considered as one disability. Where the percentage requirements for TDIU are not met, a total disability rating may be assigned on an extraschedular basis when a veteran is unable to secure or follow a substantially gainful occupation as a result of his or her service-connected disability or disabilities. 38 C.F.R. § 4.16(b) (2020). A July 2020 rating decision granted entitlement to a TDIU, effective January 10, 2018, the date the schedular requirements were met. As the claim was not granted for the entire period on appeal, it remained on appeal and was returned to the Board. Harper v. Wilkie, 30 Vet. App. 356 (2018). Prior to January 10, 2018, the Veteran did not meet the schedular TDIU requirements. At that time, service connection was in effect for a lumbar spine disability, rated as 40 percent disabling; a left knee disability, rated as 20 percent disabling; allergic rhinitis and urticaria each, rated as 10 percent disabling; and sinusitis-retention cyst left maxillary sinus and left knee scar, each rated as noncompensable. His combined rating was less than 70 percent and he did not have "one disability" as defined by 4.16(a) that was ratable at 60 percent. Thus, he did not meet the schedular requirements for a TDIU. Nevertheless, as the Veteran's claim for extraschedular TDIU has already been denied by the Director of Compensation and Service in a March 2021 advisory opinion, the Board has jurisdiction to adjudicate the issue of entitlement to a TDIU on an extraschedular basis. See Bowling v. Principi, 15 Vet. App. at 1, 10 (2001) (stating the Board is precluded from assigning an extraschedular TDIU in the first instance and must first refer the claim to the Director of Compensation Service); see also Wages v. McDonald, 27 Vet. App. 233, 239 (2015) (stating a decision by the Director of Compensation and Pension Service is not evidence but "a decision that is adopted by the RO and reviewed de novo by the Board"). Regarding the date of claim, a September 2013 decision granted service connection for a lumbar spine disability, effective April 13, 2007. The Veteran timely appealed the initial rating assigned for his lumbar spine disability. During the pendency of that appeal, he raised the issue of unemployability. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of an increased rating claim. Accordingly, the current TDIU claim relates back to April 13, 2007, the date of the initial rating for the Veteran's lumbar spine disability. The final question is whether the evidence supports entitlement to a TDIU on an extraschedular basis any time prior to January 10, 2018. As an initial matter, the Veteran was gainfully employed prior to June 26, 2009, earning over $6000 per month. See February 2016 and July 2018 VA Forms 21-8940. See also May 12, 2011 Social Security Administration (SSA) decision (stating the Veteran last worked full time on June 25, 2009 and had not been engaged in substantially gainful since then). Accordingly, the Board must address whether the Veteran's service-connected disabilities precluded substantially gainful employment since June 26, 2009. A July 2008 Navy reserve record notes that the Veteran was placed on a light duty profile due to his low back pain and was prohibited from engaging in impact activities and heavy lifting. A March 2009 record from Dr. Vargas indicated that the Veteran was unable to work from March 26, 2009 through April 9, 2009 secondary to his lumbar spine disability as he needed to rest and get physical therapy. He was restricted from twisting or bending his lower back, lifting of more than 20 pounds above shoulder level, and pushing or pulling over 10-15 pounds. In an August 2009 letter, Dr. Lugo stated that the Veteran had recurring low back pain, numerous episodes of sharp pain flare-ups, fatigability, discomfort, and that was, at times, incapacitating. Dr. Lugo opined that the Veteran's condition more likely than not able to hold gainful employment. A September 2009 U.S. Department of Labor physician report indicates that the Veteran had a brain contusion and back injury that resulted in him being totally disabled since June 26, 2009 and that his disability would continue indefinitely. An October 2009 U.S. Department of Labor duty status report indicates the Veteran was unable to perform the work required of an able body seaman as he was limited to intermittent lifting of no more than 10 pounds, two hours of sitting, two hours of standing, two hours of simple grasping, two hours of driving, one hour of walking, one hour of fine manipulation, and one hour of reaching above shoulder level. Records from Dr. Vargas from November 2009 and January 2010 indicate that the Veteran had constant back pain, was incapacitated, and unable to work. He was noted to have pain with prolonged sitting and forward bending. In April 2010 statements, the Veteran reported that his sinusitis and rhinitis caused 6-8 weeks of incapacitating episodes that required, inter alia, bedrest. He also reported that was no longer able to attend Naval Reserve drill because of his lumbar spine disability. In an April 2010 SSA functional report, the Veteran reported he was only able to walk 10 minutes before needing to rest for 10-15 minutes. He reported having four years of college and occupational experience as an able body seaman and as an aviation boatswain. In a May 2010 statement, Dr. Vargas stated that the Veteran had severe physical limitations, including great difficulty ambulating, difficulty remaining in the same position for extended periods whether seated or standing, and an inability to stoop. He opined that the Veteran's back disability resulted in constant pain, decreased motion, and that his symptoms continued to worsen despite various treatment with narcotic pain killers and steroidal agents. Dr. Vargas opined that the Veteran was unable to return to his job as he had permanent restriction of motion, was unable to walk, stand, bend, stoop, lift, or pull due to his back condition, pain, and associated extremity weakness. It was further noted that the Veteran's pain management caused marked drowsiness and impaired awareness and that his irritability and frustration made working with others uncomfortable. Therefore, he was unsuitable for even menial sedentary tasks. A July 2010 SSA physical residual capacity assessment notes that the Veteran was unable to lift more than 10 pounds, that he was limited to standing and/or walking two hours in an eight-hour workday, and sitting six hours in an eight hour workday. It was noted that he was occasionally able to climb stairs, balance, stoop, kneel, crouch, and crawl. A February 2011 sinus examination report noted that the Veteran's sinusitis and allergic rhinitis resulted in occupational impairment when he had sinus headaches. The May 2011 favorable SSA decision noted that the Veteran had not engaged in substantially gainful activity since June 26, 2009. He was noted to have severe impairments from a lumbar spine disability, migraine headaches, and PTSD with depression. Regarding his limitations, it was noted that he had, inter alia, difficulty with sitting, standing, or walking for prolonged periods and difficulty with repetitive movements that precluded sustained fulltime work. It was noted that the Veteran had the capacity to perform sedentary work but did not have the ability to perform any past relevant work. It was also determined that he was unable to perform unskilled work as his pain, functional deficits, and limitations would consistently interrupt work process, result in work stoppage, and render him physically and mentally unable to perform a 40-hour work week. The May 2011 SSA disability determination indicated that the Veteran was disabled due to a mood disorder and spine condition. A May 2011 VA record noted that the Veteran continued to have severe constant back pain despite medication. It was noted that his pain increased with prolonged standing and sitting and that some days the pain was so bad that it was "very difficult to get out of bed." A July 2011 VA physical therapy record noted that the Veteran had chronic mid and lower back pain that prohibited more than light duties. It was noted that he was able to walk long distances with a quad cane with minimal impairment. It was noted that he was unable tolerate more than 15 minutes in a standing posture and less than 30 minutes in a seated posture. An August 2011 VA spine examination report indicates that the Veteran was disabled due to back and knee conditions. The Veteran reported that he walked with a cane and was limited to walking approximately 14 mile. Regarding his lumbar spine disability, the examiner noted that the Veteran's back disability caused problems with lifting and carrying, decreased strength, and pain. VA physical therapy records from September 2011 and November 2011 note that the Veteran continued to have severe back pain and was only able to perform light duties at home. It was noted that he could tolerate 20 minutes of standing and no more than 30 minutes in a seated posture. A May 2012 VA knee examination report indicates that the Veteran reported left knee discomfort and weakness. It was noted that he required a cane to ambulate due to his back and knee problems. The examiner did not expressly detail the impact the Veteran's knee disability had on his ability to work. An August 2012 record from Dr. Vargas noted that the Veteran had severe back pain and had been unable to work since June 2009. It was noted that the Veteran walked with a cane and had extreme difficulty walking and supporting himself without it. He was also noted to have greatly diminished motion and an inability to stoop. In a December 2012 statement, Dr. Center opined that the Veteran had a severe back condition with related psychiatric symptoms that were "profoundly disabling." She opined that, in combination, his back and psychiatric symptoms were totally disabling. A July 2014 VA physical therapy record noted that the Veteran had ongoing low back pain and used a cane during flare-ups. It was noted that he could tolerate approximately 15 minutes of sitting and 15-20 minutes of standing. On a February 2016 VA Form 21-8940, the Veteran reported he last worked on June 25, 2009, and worked as an able body seaman. He reported that he was unable to work inter alia due to his service-connected lumbar spine and left knee disabilities. He reported having a college degree and occupational training in firefighting, law enforcement / security, and weapons training. A September 2016 VA spine examination report indicates that the Veteran required regular use of a lumbar brace and cane. Regarding occupational impairment, the examiner opined that the Veteran was able to perform jobs requiring semisedentary work with the additional restrictions of no prolonged standing, no prolonged walking or climbing of stairs, no repetitive bending, no pulling or pushing, and no lifting more than 20 pounds. Additionally, the examiner indicated that the Veteran would need an ergonomic evaluation and several breaks throughout the day. At a January 9, 2018 VA knee examination, the Veteran reported that since his separation from service he had experienced daily left knee pain, flare-ups with prolonged standing and walking, locking, giving way, and difficulty climbing and squatting. The examiner opined that the Veteran's left knee disability would not impact his ability to function in a sedentary occupational environment or perform sedentary employment activities. A January 9, 2018 VA sinus examination report noted that the Veteran had seven or more non-incapacitating episodes of sinusitis during the past 12 months. The examiner noted that the Veteran's sinusitis and rhinitis impacted his ability to perform occupational activities in an environment that requires strenuous activities and/or constant or frequent exposure to dust, fumes, smokes, particulate matter, but would not impact his abilities to perform sedentary employment activities in a controlled environment. Regarding the cause of the Veteran's unemployability, there are numerous medical opinions indicating that he has been unable to perform any past relevant work since June 2009. See e.g., May 2011 SSA decision, May 2010 Dr. Vargas record (stating the Veteran cannot return to his job due to his back disability); October 2009 U.S. Department of Labor duty status report (stating the Veteran was unable to work as an able body seaman); August 2009 Dr. Lugo record (opining that due to his back disability, radiculopathy, and anxiety the Veteran was unable to hold gainful employment). The Board acknowledges that some of the opinions considered nonservice-connected disabilities. Nevertheless, the weight of the evidence indicates that the Veteran's service-connected lumbar spine and left knee disabilities precluded physical labor as they caused difficulty ambulating; precluded prolonged sitting, standing; and walking; repetitive bending; pulling or pushing, lifting over 20 pounds; and necessitated frequent postural changes and breaks. See e.g., March 2009 Dr. Vargas record (noting his lumbar spine disability prohibited twisting, bending, lifting more than 20 pounds, and pushing or pulling over 10-15 pounds); May 2010 Dr. Vargas record (noting his lumbar spine disability caused difficulty ambulating, postural limitations, and an inability to stoop, bend, lift, or pull); July 2011, November 2011, and July 2014 VA records (noting that his lumbar spine pain precluded more than 15-20 minutes in a standing posture and 15-30 minutes in a seated posture); August 2011 VA spine examination report (stating his lumbar spine disability precluded walking more than 14 mile and interfered with lifting and carrying); September 2016 VA spine examination report (stating his lumbar spine disability precluded prolonged standing or walking, stair climbing, repetitive bending, pulling or pushing, lifting over 20 pounds, and necessitated rest breaks). Additionally, his sinusitis and allergic rhinitis also impaired his ability to perform strenuous activities or work in environments with frequent exposure to dust, fumes, smokes, and particulate matter). See January 2018 VA sinus examination. While the Board acknowledges that the Veteran has four years of college education and some evidence indicates he was capable of sedentary or light employment, his work experience is limited to physical work as a seaman, aviation boatswain's mate, and security specialist. Moreover, even assuming, arguendo, he had the education and skills necessary for sedentary employment, the evidence indicates that his pain medications, inability to sit for extended periods, and need for frequent rest breaks would prohibit sedentary employment. See May 2010 Dr. Vargas record; September 2011, November 2011, July 2014 VA physical therapy records; and September 2016 VA spine examination report. Given the foregoing and resolving all reasonable doubt in favor of the Veteran, the Board finds that due to his service-connected disabilities the Veteran has been unable to secure and follow a substantially gainful occupation consistent with his education and work history since June 26, 2009, the day following his last date of employment. 38 C.F.R. § 4.16(b), 4.3 (2020). K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Anderson 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.