Citation Nr: 21063311 Decision Date: 10/13/21 Archive Date: 10/13/21 DOCKET NO. 12-29 461 DATE: October 13, 2021 ORDER Entitlement to a total disability evaluation based upon individual unemployability due to service-connected disabilities (TDIU) is granted. FINDING OF FACT The Veteran does not meet the schedular criteria for entitlement to TDIU, but his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1990 to September 1991. This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which is the Agency of Original Jurisdiction (AOJ). In June 2017, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In August 2017, March 2019, and July 2020, the Board remanded the case for further development. That development was completed, and case has since been returned to the Board for appellate review. Law and Analysis In the most recent July 2020 remand, the Board directed the AOJ to obtain any outstanding vocational rehabilitation records, to include any records generated in connection with the Veteran's December 2017 application for such benefits. The Board also noted that the AOJ previously requested the Veteran's updated vocational rehabilitation records; however, the local Veteran Readiness and Employment (VR&E) office referred the AOJ to a September 2017 claims file entry, which only contained records dated until 2016. Thereafter, in July 2020, the AOJ requested the Veteran's latest vocational rehabilitation records. In a July 2020 response to the request, the local VR&E office again noted that the files had been uploaded to the Veteran's file in September 2017. In September 2020, the AOJ requested any outstanding vocational rehabilitation records dated after 2016, to include any records generated in connection with the Veteran's December 2017 application for benefits. The AOJ noted that the record contained a VR&E folder that was added to the claims file in September 2017; however, that folder only contains records dated until 2016. In a September 2020 response, the local VR&E office indicated that the Veteran did submit an application for vocational rehabilitation in December 2017 and that he was sent a notification letter for an appointment in January 2018; however, he did not show up for his scheduled appointment. The VR&E program specialist noted that the Veteran was sent a "no-show" letter in January 2018, which provided him ten days to contact the office to continue with his application, but the Veteran did not contact the office. The VR&E program specialist related that twelve days after the "no-show" letter was sent, a decision letter was sent to the Veteran informing him that his file was closed. The VR&E program specialist reported that all applicable letters were uploaded to the Veteran's claims file. Moreover, with regard to the prior remands, the Board finds that the AOJ substantially complied with the directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). The Veteran and his representative have not contended otherwise. The Veteran and his representative have not raised any other issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board...to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. For VA purposes, total disability exists when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.16(b). A total disability rating for compensation may be assigned, where the schedular rating is less than total, when a veteran is, in the judgment of the rating agency, 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 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 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements are not met, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). For VA purposes, the term "unemployability" is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. In this case, the Veteran is service-connected for lumbar spine strain/sprain with degenerative disc disease, rated 40 percent disabling; radiculopathy of the left lower extremity, rated 20 percent disabling; and a laceration to the back of the head, rated noncompensable. His combined disability rating is 50 percent. Accordingly, the Veteran does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a). As noted above, entitlement to TDIU on an extraschedular basis may be granted in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. In this case, the Director of Compensation Service denied entitlement to TDIU on an extraschedular basis in August 2012. However, the Board has jurisdiction to review determinations by the Director. Wages v. McDonald, 27 Vet. App. 233 (2015). In a September 2012 VA Form 9, Appeal to the Board, the Veteran indicated that even though he did not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16(a), he felt that he met the criteria under special consideration because he had been deemed totally incapacitated and unemployable by at least three medical providers and that the evidence showed that he had exceptional and unusual circumstances impairing his earning capacity due to his disabilities. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. The evidence of record indicates that the Veteran's highest level of completed education was a general educational development (GED) in May 1990. See August 2012 Social Security Administration (SSA) application. In a statement submitted by the Veteran detailing his employment history, he reported that he was a full-time college student pursuing a bachelor's degree in business administration with a focus in logistics and transportation safety from August 2006 until December 2006. The record shows that his employment history included work as a coal miner from 1996 to 2002 and as a truck driver until 2008. Id.; see also March 2002 VA treatment record (Veteran worked as a truck driver and in an underground mine as an equipment operator), May 2007 VA treatment record (Veteran reported he worked as a truck driver); August 2008 VA treatment record (Veteran indicated that he was a truck driver and logistics specialist, but that he was currently unemployed), March 2010 VA Form 21-8940 (Veteran reported he worked in transportation as a truck driver). At the outset, the Board notes that the Veteran has been denied service connection for hemangioma (claimed as a lumbar vascular tumor). See August 2010 rating decision. SSA records show that the Veteran has claimed SSA disability benefits based on functional impairment due to his lumbar vascular tumor. See August 2012 SSA application (Veteran alleged that his spinal tumor was the direct cause of pain, weakness, numbness, and spasticity in lower back and down bilateral legs and that, due to this condition, he was unable to pass the Department of Transportation physical and his commercial driver's license (CDL) was deactivated leaving him unemployable). However, the Veteran is not service-connected for a lumbar vascular tumor, and a grant of TDIU must be based upon impairment due to service-connected disabilities only. During the June 2017 hearing, the Veteran reported that he worked as a truck driver since he separated from service in 1991. He estimated that he had worked for 50 trucking companies since that time. The Veteran indicated that his back and lower extremity disabilities caused restrictions which caused him to lose all of his jobs. He related that he was unable to maintain employment anymore in 2012 because he used a cane and a walker and was limited to walking, standing, and sitting no longer than ten minutes at a time. In a May 1998 vocational assessment included in the Veteran's VA Vocation Rehabilitation and Employment (VR&E) program file, a private rehabilitation counselor noted that the Veteran earned a certificate for completing an extended tractor-trailer driving training course in 1991, which resulted in a CDL license. He noted that the Veteran had pursued a career in over-the-road (OTR) truck driving since that time. The counselor reported that the Veteran completed his certificate requirements through the Professional Truck Driver's Institute of America in June 1992 and that he continued training to become certified with a Class A CDL with endorsements for doubles, triples, hazardous material, and tankers. In addition, the counselor noted that the Veteran held a Department of Transportation medical examiner's certificate. The counselor further noted that the Veteran's work history showed that he received some training and obtained a certification as a nurse aid. The counselor indicated that the Veteran had been employed as an OTR truck driver for the previous three years with a variety of employers. He noted that the Veteran's most recent employment ended in April 1998 due to a requirement for him to be absent from work to tend to family medical problems in Michigan. The counselor indicated that each period of employment since 1994 was approximately one year long. He further noted that, since the Veteran was certified with his CDL license in June 1992, he held OTR driving positions with 13 different companies in various states with employment lasting from short periods of one to two months up to one year. He stated, "[The Veteran] offers somewhat vague information regarding his need to change jobs frequently, generally citing needs to be with his family, or needs to provide assistance to other family members out of state requiring medical attention." In the May 1998 vocational assessment, the counselor noted that the Veteran described aggravation to his low back disability due to the constant bouncing while performing extended driving operations. The counselor related that the Veteran appeared to have entered an occupation that aggravated his service-connected low back disability. He indicated that the Veteran appeared to encounter vocational impairment, lacking any qualifications for compatible employment. The counselor also stated that it appeared that OTR driving would continue to aggravate his service-connected disability, as would a career as a certified nurse aid. He noted that the Veteran had not overcome this vocational impairment through acquiring any additional licenses, certificates, or degrees pertinent to employment. Consequently, he determined that referral to employment services did not appear appropriate, as the Veteran would likely tend to continue to aggravate his service-connected disabilities. However, he indicated that the Veteran's employment handicap was not serious. The counselor stated that careers in engineering technology and computer-aided drafting would be more compatible with the Veteran's service-connected disability. In a March 2010 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported that a lumbar vascular tumor affected the mobility of his legs and prevented him from securing or following any substantially gainful occupation. He stated that, on February 1, 2008, his disability affected his full-time employment; that he last worked full-time on that date; and that he became too disabled to work on that date. He also stated that he was unable to pass the Department of Transportation physical due to his disability, which deactivated his CDL. The Veteran further indicated that his restrictions due to an inability to stand, walk, or sit for over ten minutes and an inability to lift, push, or pull have made him unable to obtain employment. In March 2010, the Veteran submitted a note on a prescription slip completed by a private physician, Dr. K.O. (initials used to protect privacy), indicating that the Veteran could not stand, walk, or sit for longer than ten minutes and that he could not lift, push, or pull due to his injuries. The Veteran also submitted a copy of Dr. K.O.'s medical statement and certification on an application for a handicapped parking placard that was dated in March 2010. Dr. K.O. indicated that the Veteran could not walk without the use of a brace, cane, or crutch without assistance from another person, a prosthetic device, a wheelchair, or other assistive device. In March 2010 correspondence, Dr. K.O. stated that, due to lumbar spine degenerative disc disease and a history of a hemangioma impinging on a nerve root, the Veteran had work limitations. She indicated that the Veteran was limited to ten minutes of sitting, standing, and walking and that he was unable to lift, push, or pull. In a July 2010 VA spine examination report, the VA examiner noted that the Veteran had diagnoses of a chronic lumbar strain/sprain with limited motion and degenerative disc disease of the lumbar spine with radiculopathy. He noted that the service-connected disabilities resulted in an inability to sit, stand, or ambulate for any period of time. He also related that the Veteran was unable to bend, lift, carry, push, or pull and that he had obvious weakness with sensory loss with respect to weight-bearing on the left lower extremity. The examiner stated that the Veteran had a considerable loss of functional capabilities with regard to walking and carrying. He also opined that the Veteran's service-connected disabilities prevented him from sitting for any period of time, which made his occupation as a truck driver impossible. The examiner further stated that it was relatively impossible for the Veteran to be employed in a light, medium, or heavy occupation per the requirements set forth by the United States Department of Labor job descriptions for those levels of employability. In addition, the examiner noted that the Department of Labor job description of a sedentary occupation required the employee to sit for two-thirds of an eight-hour workday. He indicated that even sedentary employment was not possible for the Veteran due to this defined period of immobilization because it would increase his pain. Thus, the examiner opined that the Veteran was incapable of being employed in any type of full-time occupation. In August 2012, the AOJ referred the Veteran's claim for consideration of TDIU on an extraschedular basis. In an August 2012 VA advisory opinion, the Director of Compensation Service determined that the Veteran was not shown to be unemployed and unemployable due to service-connected disabilities for consideration of entitlement to a total rating on an extraschedular basis under 38 C.F.R. § 4.16(b). The Director noted that, in the Veteran's application for TDIU, he stated that a lumbar vascular tumor affected the mobility of his leg and prevented him from securing or following any substantially gainful employment. In a statement detailing his past work history submitted in October 2012, the Veteran indicated that he worked as an OTR driver/trainer from October 2005 to April 2006 for a trucking company in Iowa. He stated that he left that job to take a warehouse manager position at another company and to take college courses. He related that he was a warehouse manager and driver from April 2006 to September 2006 for a transportation and warehouse company in Michigan. The Veteran indicated that he left that position due to personal reasons. He also reported that he was a full-time student pursuing a bachelor's degree from August 2006 to December 2006. The Veteran related that he worked as an OTR driver from November 2006 to June 2007 for another trucking company in Minnesota. He stated that he left that job for a career opportunity for his wife that moved his family to Arizona. The Veteran indicated that he worked as an OTR driver handling oversized loads from August 2007 to January 2008 for a transportation company in Indiana. He stated that he left that position due to personal reasons. In March 2014, the Veteran submitted a VA Form 29-1900, Application for Vocational Rehabilitation. A January 2015 VA Form 28-1905d, Special Report of Training, indicated that the Veteran was completing transitional or college transfer classes at Northeast Wisconsin Technical College and that he received Chapter 31 educational benefits. The report stated that the Veteran was pending admission to the University of Wisconsin Green Bay and that he was pursuing a bachelor's degree in secondary education. The report also noted that the Veteran's cumulative grade point average was a 4.0. However, in May 2016, the Veteran withdrew from the VA VR&E program. In an email to a VA VR&E counselor, the Veteran reported that, despite being a 4.0 student, he dropped all of his classes at the University of Wisconsin Green Bay and that he was withdrawing from the VR&E program indefinitely. During a November 2017 VA back examination, the Veteran reported that he had constant back pain. He indicated that his pain worsened with bending, twisting, sitting, lying back and trying to sit up, standing, and walking on uneven terrain. He also stated that his left leg nerve condition had progressed over the years such that he had constant numbness that extended from his buttocks to the medial aspect of his left foot. The examiner indicated that the Veteran's back and left leg radiculopathy disabilities impacted his ability to work. Specifically, the examiner noted that the Veteran would have difficulty sitting more than 10 to 15 minutes without changing positions, standing for more than 15 minutes without changing positions, lifting weight over five pounds, twisting of the trunk, pushing and pulling any significant weight, walking more than 15 minutes every two hours, carrying items, climbing stairs or ladders, and working with any form of foot control (such as vehicle clutches and mechanical press operating controls). The examiner also stated that the Veteran would be at risk of harm to himself or others with working with or around any form of hazardous equipment, equipment with moving parts, and hot equipment. In a November 2017 VA primary care record, a family nurse practitioner noted that the Veteran had chronic low back pain secondary to degenerative joint disease and vascular pathology that caused significant weakness in his lower extremities that disrupted his quality of life. He indicated that the Veteran's symptoms had been progressing since he began seeing the Veteran in October 2017 and that the Veteran reported that they had progressed over the last several years. The nurse practitioner opined that the Veteran should not lift, push, or pull greater than or equal to ten pounds or be on his feet for periods longer than ten minutes to help reduce exacerbations of his symptoms and pathology. Based on the foregoing, the Board finds that there is at least a reasonable doubt as to whether the Veteran would be able to maintain substantially gainful employment in light of his service-connected back and left lower extremity radiculopathy disabilities, particularly when the significant impairments and limitations identified throughout the record are considered. There is also evidence showing that the Veteran's service-connected back and left lower extremity disabilities render him unemployable, particularly when considered in the context of his education and past work experience. Indeed, there is evidence from VA examinations, private physicians, and SSA records all supporting such a finding. Although there is some evidence showing that other disabilities may impact the Veteran's ability to work, the evidence still shows that he is unemployable due to his service-connected back and left lower extremity radiculopathy disabilities without any consideration of his other disorders. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that entitlement to TDIU is warranted on an extraschedular basis. J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.