Citation Nr: 21063850 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 20-09 725 DATE: October 18, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from March 9, 2017 to December 9, 2020 is granted, subject to the laws and regulations controlling the award of monetary benefits. REMANDED Entitlement to a TDIU due to service-connected disabilities on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) prior to March 9, 2017 is remanded. FINDING OF FACT From March 9, 2017 to December 9, 2020, the Veteran's service-connected disabilities preclude all substantially gainful employment for which his education and occupational experience would otherwise qualify him. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities are met from March 9, 2017 to December 9, 2020. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1955 to February 1959 and October 1961 to August 1962. In November 2020, the Veteran testified during a virtual hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. In August 2021, the issue of entitlement to a TDIU was remanded by the Board for further development, to include development and adjudication of the issue by the Agency of Original Jurisdiction (AOJ). See Rice v. Shinseki, 22 Vet. App. 447 (2009) (a claim for TDIU is considered to be part and parcel of an increased rating claim (to include an initial higher rating claim)). In an August 2021 rating decision, the AOJ granted entitlement to a TDIU, effective December 9, 2020, the date the Veteran submitted an Application for Increased Compensation Based on Unemployability (VA Form 21-8940). Therefore, the AOJ substantially complied with the Board's August 2021 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). As noted previously, the AOJ awarded a TDIU from December 9, 2020 in an August 2021 rating decision. The Veteran's claim of service connection for his service-connected back disability was received by the VA on March 19, 2015, and that is the date of claim for purposes of the issue of entitlement to a TDIU. As the evidence reflects that the Veteran was unemployed during the claim period prior to December 9, 2020, and the TDIU issue on appeal was raised as part and parcel of the claim for a higher initial disability rating for back disability, the issue of entitlement to a TDIU, prior to December 9, 2020, remains on appeal before the Board. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). As a final preliminary matter, the Board notes that the Veteran's attorney requested a copy of his April 2021 VA examination in October 2021 correspondence submitted to the VA. However, the Board fulfilled this request when it provided the attorney with the Veteran's entire claims file, of which the April 2021 VA examination was associated, in July 2021. Thus, this request has been fulfilled and there is no prejudice in the Board's proceeding in adjudicating the claims on appeal. Entitlement to a TDIU The issue of entitlement to a TDIU was raised at the Veteran's November 2020 Board hearing as part of the claim for a higher initial disability rating for back disability. The issue of entitlement to a TDIU is deemed to have been submitted as part of any increased rating when evidence of unemployability is submitted at the same time as the claim, and the Veteran seeks the highest rating possible. Rice, 22 Vet. App. at 447. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry in a claim for entitlement to a TDIU 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). The Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, the Veteran is in receipt of service connection for acquired psychiatric disorder diagnosed as adjustment disorder with disturbance of mood, evaluated at 50 percent disabling from March 9, 2017; lumbar spine degenerative arthritis, evaluated at 40 percent disabling from March 19, 2015; left lower extremity radiculopathy of the sciatic nerve, evaluated at 20 percent disabling from March 19, 2015; left lower extremity radiculopathy of the femoral nerve, evaluated at 20 percent disabling from August 1, 2018; right lower extremity radiculopathy of the sciatic nerve, evaluated at 20 percent disabling from December 9, 2020; right lower extremity radiculopathy of the femoral nerve, evaluated at 20 percent disabling from December 9, 2020; tinnitus, evaluated at 10 percent disabling from December 29, 2015; ilioinguinal nerve (right-side) neuralgia, evaluated at 10 percent disabling from March 9, 2017; and noncompensable impotence, inguinal hernia, residual scar posterior spine, and right ear hearing loss. The Veteran's combined disability rating is noncompensable from September 26, 2001, 50 percent from March 19, 2015, 60 percent from December 29, 2015, 80 percent from March 9, 2017, and 90 percent from August 1, 2018. As noted previously, the Veteran is in receipt of a TDIU from December 9, 2020. As the Veteran has two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined disability rating is 70 percent or higher, from March 9, 2017, he meets the schedular criteria for a TDIU from that date. None of the exceptions in 38 C.F.R. §4.16(a)(1)-(5) (disabilities of extremities, common etiology, single body system, incurred in action, or prisoner of war) are for application prior to March 9, 2017. As noted in the introduction, the issue of entitlement to a TDIU is part and parcel of the claim for a higher initial disability rating for back disability that is effective March 19, 2015. Rice, 22 Vet. App. at 453. The appeal period thus begins on that date, or within a year prior if unemployability was factually ascertainable. See 38 U.S.C. § 5110(b)(3) ("The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability occurred if application is received within one year from such date"); 38 C.F.R. § 3.400(o)(2) (awarding an increased evaluation for disability compensation as of the "[e]arliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred"). However, the Veteran does not meet the schedular criteria for entitlement to a TDIU until March 9, 2017, and the Board will adjudicate whether the Veteran is entitled to a TDIU from that date. Entitlement to a TDIU on an extraschedular basis prior to March 9, 2017 is discussed in the remand portion of the Board's decision. The remaining question is whether the Veteran's service-connected disabilities preclude gainful employment for which his education and occupational experience may otherwise qualify him. The term "unable to secure and follow a substantially gainful occupation" is defined as having two components: one economic and one non-economic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran completed two years of high school and one year of automotive school as indicated in his December 2020 VA Form 21-8940. He additionally noted that he has not been employed since 1996 and was primarily employed as an automotive mechanic. An August 2018 VA back examination noted that the Veteran's back disability impacted his ability to work as it would impact his ability to lift heavy objects in the workplace. His use of a cane meant he was unable to walk for prolonged periods of time. An August 2018 VA male reproductive system examination indicated that the Veteran's male reproductive disability impacted his ability to work as he urinated frequently and wore a condom catheter. An August 2018 VA hearing loss examination noted that the Veteran's hearing loss impacted his ability to work as heard a chirping nose in his right ear intermittently that could be bothersome and distracting. A February 2020 VA back examination noted that the Veteran's back disability impacted his ability to work as the Veteran was less able to tolerate weight-bearing activities such as standing, walking, running, climbing, kneeling, squatting, or rising. An April 2021 VA nurse practitioner found during VA back and peripheral nerves examinations that the Veteran's back and peripheral nerve disabilities impacted his ability to work in that he was unable to bend, stand, and sit for long periods of time as a result of his radiculopathy and the pain from his degenerative arthritis and intervertebral disc syndrome. An April 2021 VA individual unemployability statement found that the Veteran was unable to perform sedentary work. For the following reasons, entitlement to a TDIU from March 9, 2017 to December 9, 2020 is warranted. Applicable regulations place the ultimate responsibility as to whether entitlement to a TDIU is warranted on the VA adjudicator, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The evidence of record reflects that the Veteran has not been gainfully employed since approximately 1996 and has experienced symptoms associated with his service-connected disabilities that result in significant functional impairments which would interfere with his ability to secure and follow any substantially gainful employment. Specifically, he would not be able to perform sedentary or physical employment due to the limitations of his disabilities as the evidence of record reflects symptoms and impairments associated with his service-connected disabilities (including, but not limited to, frequent urination, hearing loss, inability to lift heavy objects, inability to sit, and inability to tolerate weight-bearing activities such as standing, walking, running, climbing, kneeling, squatting or rising) that would prevent him from performing any type of substantially gainful employment. For the foregoing reasons, the Veteran's service-connected disabilities prevent him from securing and following substantially gainful employment consistent with his education and occupational experience. Entitlement to a TDIU is therefore warranted from March 9, 2017 to December 9, 2020. REASONS FOR REMAND Entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) prior to March 9, 2017 As noted previously, the Veteran does not meet the schedular criteria under 38 C.F.R. § 4.16(a) prior to March 9, 2017. Even where a Veteran does not meet the schedular criteria of 38 C.F.R. § 4.16(a), VA must consider whether TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). However, the Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance, but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted." Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the holding of Bowling has been questioned, see Wages v. McDonald, 27 Vet. App. 233, 239-240 (2015) (Kasold, C.J., concurring) ("The Bowling holding was rendered with little analysis of 38 C.F.R. § 4.16(b) or its interplay with the statutory scheme for adjudicating claims, which requires decisions of an agency of original jurisdiction to be appealed to the Board and final decisions to be rendered by the Board, see 38 U.S.C. §§ 7104 and 7105. Frankly, Bowling appears to be wrongly decided"), the Court recently declined to address whether it should be overruled. See Stafford v. Wilkie, No. 18-4520 (Vet. App. Apr. 15, 2020) (nonprecedential panel Order) (dismissing the appeal as moot) and id., slip op. at 2 (Greenberg, J., dissenting) ("What evil lurks behind the Court deciding whether Bowling v. Principi, 15 Vet. App. 1 (2001) remains good law?"). The initial extraschedular referral decision under § 4.16(b) should address whether there is "sufficient evidence to substantiate a reasonable possibility that a Veteran is unemployable by reason of his or her service-connected disabilities." Ray, 31 Vet. App. at 66. The evidence of record here reflects that there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable by reason of his service-connected disabilities prior to March 9, 2017. Therefore, the issue of entitlement to a TDIU should be referred to the Director of Compensation for consideration under 38 C.F.R. § 4.16(b) prior to March 9, 2017. Accordingly, the matter is REMANDED for the following action: Refer the issue of entitlement to TDIU to the Director of Compensation Service for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b) prior to March 9, 2017. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Styer, 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.