Citation Nr: 21065123 Decision Date: 10/25/21 Archive Date: 10/25/21 DOCKET NO. 04-42 241 DATE: October 25, 2021 ORDER A total disability based on individual unemployability (TDIU), from September 27, 2002 to September 10, 2015, is granted. FINDING OF FACT Since September 27, 2002, the Veteran has been precluded from securing or following substantially gainful employment. CONCLUSION OF LAW From September 27, 2002 to September 10, 2015, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1987 to January 1991. The case is on appeal from a July 2003 rating decision. The Veteran testified at a Board hearing in July 2017. The issue of entitlement to a TDIU has previously been before the Board multiple times throughout the long history of the claim. Most recently, in June 2018, the Board granted a schedular TDIU from September 10, 2015, and remanded the issue of a TDIU for a medical opinion, and for referral to the Director of Compensation Service for extraschedular consideration for the period prior to September 2015. The Veterans Law Judge who chaired the July 2017 Board hearing is no longer available to decide the appeal. Thus, the Board sent the Veteran a letter offering another Board hearing. In January 2021, the representative stated that the Veteran did not want another hearing. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A TDIU prior to September 10, 2015. Legal Criteria A total disability rating for compensation may be assigned where the schedular rating is less than total and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one such disability, this disability 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 or more. Id. In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and; Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). If the percentage requirements of 38 C.F.R. § 4.16(a) are not met, then a TDIU may still be granted on an extraschedular basis in cases when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). However, the Board cannot grant an award of a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation Service (Director) for extraschedular consideration. See Wages v. McDonald, 27 Vet. App. 233 (2015). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54-55 (1990). Facts and Analysis By a June 2018 Board decision, the Veteran was granted schedular TDIU from September 10, 2015 under 38 C.F.R. § 4.16(a). However, an earlier award of TDIU on an extraschedular basis is still on appeal. Since leaving service in 1991, the Veteran has reported trouble maintaining employment. He states that he has lost several jobs from not being able to "keep up" due to back pain and other disabilities. See December 1991 and February 1993 Hearing Testimony. He also contends he has tried several different jobs, but his limitation in walking, standing, and even sitting, have hindered his working abilities. See October 2009 Hearing Testimony. Since leaving service and throughout the appeal period, the Veteran has sought assistance through VA's vocational rehabilitation and employment program (VR&E). In November 1991, a counseling psychologist that interviewed the Veteran for vocational rehabilitation noted that at the time, his only training and work experience to that date had been in jobs requiring heavy physical activities without limitations. It was also noted that he had no formal education beyond a high school degree, and that his employment prospects were not good without formal or on-the-job training. At another VR&E assessment a few years later, it was noted that while in the U.S. Coast Guard, the Veteran was trained as a damage control man in firefighting, welding, carpentry, and heating and air repair, and that since leaving service he had worked for about 30 days as a bun racker at a bakery, a cook, a cashier for six months, and as a welder for two months. However, the Veteran indicated that in all these positions he was unable to maintain this work due to lower back pain and right leg discomfort and swelling. He also listed problems in the activities of pushing, pulling, climbing, stooping, crouching, kneeling, and crawling. He reported having a maximum of 30 minutes for standing and walking, one hour maximum for sitting, and at times requires assistive devices for support and stability. The counselor determined that the Veteran had a deficiency in education, in that while he had since procured "a good skilled trade," and "good skills in barbering," after attending school for this, barbering was not compatible with his physical impairments. In September 2002, the Veteran submitted his application for increased compensation based on unemployability, stating he was unable to work as a result of his service-connected disabilities. He listed 1991 as the date his disability affected full time employment. His previous employment was listed as a barber full time from August 1995 to July 1998, and then part time as a barber from July 1998 to May 2000. He indicated that the last he became too disabled to work as May 2000. Thereafter at a November 2007 VA examination, a doctor opined that the effect of the Veteran's low back condition caused limitation in bending or stooping, and he could not perform any work related activities due to his back problems. The examiner elaborated that the Veteran was in constant pain, limited severely in ambulation, and had a great difficulty doing anything but supervisory work. VA medical CAPRI documents from December 2014 to August 2015 reflect the Veteran experiencing frustration with placing applications for jobs, visiting the unemployment office, and occasionally gaining short-lived jobs before again reporting unemployment. At a September 2015 VA examination, the examiner opined that it was at least as likely as not that the Veteran would have great difficulty performing any task or activity that requires use of the lower extremities, as his various service-connected disabilities "have a significant effect on his industrial capability, social functioning, and on his activities of daily life." The examiner expanded that activities that involve being ambulatory or using lower extremities are extremely difficult, if not impossible, for the Veteran to perform. Following the Board's June 2018 remand for extraschedular consideration for a TDIU prior to September 2015, a medical opinion was obtained in October 2019 to discuss the functional impairment caused solely by the service-connected disabilities relative to the Veteran's ability to obtain and retain substantially gainful employment consistent with his education and occupational experience. It was opined that the Veteran's service-connected disabilities during that period would cause moderate to severe limitations on performing sedentary activities of employment. The examiner pointed to his range of motion, pain, instability, limited ambulation, and the Veteran's reports that his conditions significantly and progressively worsened since 2000. An addendum opinion by a different examiner was provided in November 2019 as to the level of work the Veteran was able to perform prior to September 2015. The examiner estimated he was able to perform "light work," with a definition of exerting 20 pounds of force occasionally, 10 pounds frequently, walking or standing to a significant degree, or requires sitting most of the time but entails pushing and/or pulling, and/or at a production rate pace entailing the constant pushing and/or pulling of materials even though the weight is negligible. In July 2020, yet another addendum opinion was obtained. After review of his claims file, the nurse practitioner opined that, while the Veteran required a cane for stability of gait and standing, he could have performed sedentary physical labor that precluded: lifting greater than 10 pounds at a time; bending; stooping; twisting; climbing more than one flight of stairs; climbing ladders; walking on uneven surfaces; standing longer than five minutes; walking greater than 50 yards; squatting; kneeling; operation of heavy equipment; operation of heavy manual equipment; or performance of assembly line work. In August 2020, a recommendation letter was prepared by the Decision Review Operations Center as to the issue of entitlement to TDIU prior to September 10, 2015. The recommendation to the Director of Compensation Service was to grant entitlement to TDIU benefits on an extraschedular basis following the day the Veteran last reported working, which was May 1, 2000. This recommendation was made following an assessment that the Veteran was capable of no more than marginal employment, and was not substantially gainfully employed due to the impairment caused by his service-connected disabilities. Thereafter in October 2020, the Director determined that the totality of the evidence did not support the criteria for an extraschedular TDIU rating, stating that the claims file contains no evidence of an inability to perform sedentary employment due to his service-connected conditions prior to September 10, 2015. It was noted that the Veteran last worked full-time as a barber in July 1998, but that his TDIU application showed no attempt to obtain sedentary work since becoming unemployed. The decision letter also indicated that while the Veteran's statements were considered, the objective medical evidence of record describes mild to moderate spine and lower extremity disabilities that have no significant impact on sedentary employment. In June 2021, the Veteran submitted the independent opinion of a board certified vocational expert. She opined that, "It is my professional opinion, based on my review of his medical records, education, and vocational history that his numerous physical impairments have prevented him from participating in full gainful employment since May 2000." She noted that his previous training in both the military and immediately after discharge involved heavy physical demands, to include limited work as a welder, longshore worker, commercial truck driver, and barber. She noted that he began college in January 2017, and graduated with a degree in social work in May 2020; however, this additional training and education was only after the period on appeal. Finally, she also addressed the discrepancy between the November 2019 opinion that the Veteran can perform "light work" or "sedentary labor," yet the medical records reviewed demonstrate that the Veteran cannot sit, stand, or walk for long periods of time. The Board finds that the Veteran's service-connected disabilities, including his back, right and left knees, right ankle, and nerve pain, preclude him from securing or following a substantially gainful occupation, when considering his education and work history. The rationale provided by the June 2021 vocational expert is persuasive given the citations to the Veteran's claims file, medical records, and lay statements. The Veteran's personal experiences including education, short-lived and sporadic work history, and the historical effect of disabilities on his personal and professional life were thoroughly reviewed. The Board notes that, while the November 2019 opinion estimated the Veteran could perform "light work," prior to September 2015, and the July 2020 opinion suggested sedentary work possible, this is contradicted by other evidence of record. As early as the mid-1990s, the Veteran reported problems with pushing, pulling, climbing, stooping, crouching, kneeling, crawling, and with a maximum 30 minutes of standing or walking, and one hour of sitting. The November 2007 VA examiner opined that the Veteran was in constant pain, was limited severely in ambulation, and had a great difficulty doing anything but supervisory work. Finally, the October 2019 medical examiner found his service-connected disabilities would cause moderate to severe limitations on performing sedentary activities of employment. The Board has also considered the Veteran's level of education, skill, and training, for the period prior to September 2015. See Ray, 31 Vet. App. at 73. Following service, he had almost exclusive experience working in physical jobs that require crouching, stooping, squatting, bending, and walking/standing for extended periods. As the VR&E counselor noted during that time, the Veteran had a deficiency in education, in that while he had procured a good skilled trade in barbering, it was not compatible with his physical impairments. Given the procedural history, the Board also finds that the award of a TDIU is warranted effective from September 27, 2002. The record indicates that the Veteran has been unable to hold substantial, gainful employment since May 2000. However, as the date entitlement arose is more than one year prior to the date of receipt of his claim for a TDIU, the appropriate effective date for TDIU is September 27, 2002, the date that both his informal claim and VA Form 8940 Application for Increased Compensation Based on Unemployability were received by VA. To the extent any earlier effective date is sought, the Board finds that a preponderance of the evidence is against the claim and the benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. In sum, after resolving any doubt in the Veteran's favor, the Board finds that the evidence shows he is entitled to an award of a TDIU rating effective from September 27, 2002. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; see also Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). This is so even if this period remains below the schedular level of 38 C.F.R. § 4.16(a) during this period. See 38 C.F.R. § 4.16(b); Wages, 27 Vet. App. at 233. Accordingly, a TDIU is granted, effective September 27, 2002. RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Morford, 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.