Citation Nr: 21065571 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 12-12 580 DATE: October 26, 2021 ORDER Entitlement to an extraschedular total disability rating due to individual unemployability (TDIU) from July 31, 2008, to November 15, 2018, is granted. Entitlement to a schedular TDIU from November 16, 2018, is granted. FINDING OF FACT The Veteran's service-connected disabilities preclude her from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for entitlement to an extraschedular TDIU from July 31, 2008, to November 15, 2018, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. 2. The criteria for entitlement to a schedular TDIU from November 16, 2018, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from March 1992 to March 1998. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision by a Department of Veterans Affairs (VA) Agency of Original Jurisdiction (AOJ). In February 2016, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. The Board remanded this matter for further development in April 2016 and March 2019. 1. Entitlement to an extraschedular TDIU from July 31, 2008, to November 15, 2018, is granted. 2. Entitlement to a schedular TDIU from November 16, 2018, is granted. The Veteran asserts that she is precluded from securing and following a substantially gainful occupation due to service-connected disabilities. See December 2010 VA Form 21-8940. The Board agrees. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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 to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The above notwithstanding, it is the policy of VA that all veterans who are unable to secure or follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, if a veteran fails to meet the schedular requirements set forth in 38 C.F.R. § 4.16(a), an extraschedular rating may nevertheless be considered under 38 C.F.R. § 4.16(b) where a veteran is unemployable due to service-connected disabilities. The Board is prohibited from assigning an extraschedular TDIU under 38 C.F.R. § 4.16(b) in the first instance without initially referring the claim to the Director of Compensation Service. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). The Veteran is in receipt of service connection for radiculopathy, left leg and lower extremity (sciatic nerve), rated 20 percent from July 31, 2008; radiculopathy, left leg and lower extremity (femoral nerve), rated 20 percent from July 31, 2008; intervertebral disc syndrome (IVDS), degenerative arthritis of the spine, rated 10 percent from July 31, 2008, and 20 percent from November 16, 2018; right lower extremity radiculopathy (sciatic nerve), rated 10 percent from July 31, 2008; and a non-compensable rating for scar, right lumbar region, from July 31, 2008. See August 2021 Codesheet. The Veteran's combined evaluation is 50 percent from July 31, 2008, and 60 percent from November 16, 2018. The period on appeal is from the effective date of service connection, or July 31, 2008. The Veteran does not meet the schedular criteria for a TDIU from July 31, 2008, to November 15, 2018, as her combined evaluation during this period was less than 60 percent (for a single disability) and less than 70 percent (for multiple disabilities). See 38 C.F.R. § 4.16(a). However, her 60 percent rating from November 15, 2018 is considered one disability for TDIU purposes, as all service-connected disabilities are of a common etiology; thus, she meets the criteria for a schedular TDIU from that date. 38 C.F.R. § 4.16 (a)(2). Thus, entitlement to a TDIU from July 31, 2008, to November 15, 2018, will be considered on an extraschedular basis and requires an opinion from the Director of Compensation Service before the Board may adjudicate on the merits. See Floyd, 9 Vet. App. at 95. Here, the Board remanded the claim for such consideration in March 2019, and the Director provided a recommendation against granting a TDIU in September 2020. Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a) (2012); 38 C.F.R. § 4.16(b)). The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran last worked full-time in February 2008. See February 2016 Board Hearing transcript (Tr.) at 20, 22 (testifying that she last worked in 2008); April 2012 Social Security Administration (SSA) Decision at 3 (indicating the claimant has not engaged in substantially gainful activity since February 28, 2008); December 2010 VA Form 21-8940 (indicating full-time employment ended in February 2008); March 2010 private treatment record (indicating the Veteran reported having not worked in 2 years). As the record reflects that the Veteran has not worked since February 2008 and, therefore, she has not earned income from employment since February 2008, the economic component of entitlement to a TDIU is met throughout the appeal period. See Ray, 31 Vet. App. at 73. Turning to the non-economic component, the Veteran has a high school degree and 16-years of employment as a police officer. See Tr. 19; December 2010 VA Form 21-8940. The Veteran worked as a police officer and K-9 handler in the military and then as a civilian police officer afterwards until retiring in 2008. See Tr. 19-22; December 2010 VA Form 21-8940; SSA Work History Report; DD Form 214. Thus, the Board's analysis will focus on how her service-connected disabilities affect her ability to perform work as a police officer. The April 2021 C&P examination report addressing peripheral nerves conditions indicates the Veteran's service-connected right lower extremity sciatica is productive of pain and mild incomplete paralysis of the right sciatic nerve. The Veteran reported that her symptoms are soreness, tightness, pain, and numbness. The examiner indicated that the Veteran's sciatic condition impacts her ability to work because it impacts walking and standing for longer than 30 minutes, pushing, pulling, lifting, carrying greater than 15-pounds, bending, and twisting of the waist. The examiner further noted that her condition precludes the Veteran from working in an environment that requires constant sitting without allotted time for breaks and "positions that require back rotation and/or monitoring of personnel and equipment in controlled environments due to back pain and stiffness with pain, numbness and tingling in [the] right leg." A January 2021 private treatment record indicates the Veteran had back pain for a week and was not able to walk for a few days and the pain was severe enough that it caused a vasovagal syncope episode (fainting). A November 2018 private treatment record indicates the Veteran had back pain radiating into the buttocks and into the legs that was sharp, moderate, and intermittent for 6-8 weeks. Aggravating factors were movement and positioning. A November 2018 C&P back examination indicates the Veteran's service-connected IVDS, degenerative arthritis, and bilateral lower extremity radiculopathy were productive of daily dull pain, stiffness after sitting or standing too long, and radiating pain. The Veteran reported flare-ups in which the low back locks up and produces pain, being stuck in a bent position, and extreme stiffness or tightness in the low back with dull to burning pain. The Veteran also reported being unable to consistently bend over, lift anything of significant weight, sit or stand for too long without stiffness, and could only walk slowly to avoid her back going out and falling. The examiner indicated that the Veteran's back had diminished range of motion that impacted her ability to bend over, sit or stand for extended periods, and walk a long distance. The examiner noted pain on examination that causes functional loss and pain with weightbearing. The examiner further observed that pain, fatigue, weakness, lack of endurance, and incoordination associated with repetitive use, repeated use over time, and flare-ups causes additional functional loss and diminished range of motion. The examiner noted that the Veteran's back condition was also productive of instability of station, disturbance of locomotion, interference with sitting, interference with standing, bending, and lifting. The examiner stated that the Veteran has balance problems if she pivots while walking or standing; walking a prolonged distance or on uneven surfaces causes pain; standing and sitting causes stiffness; bending is limited; and she cannot lift anything of significant weight. The examiner opined that these limitations would impact her ability to work. A June 2017 private treatment record indicates the Veteran reported diffuse low back pain and soreness, bilateral buttock pain, bilateral leg pain, and numbness. The doctor noted that pain was aggravated by standing and sitting and that the Veteran must lean on something when standing or walking at the store. At her February 2016 Board hearing, the Veteran testified that due to her service-connected back disability, she cannot sit or stand in one place too long, she cannot bend over at the waist to pick up something, and she has to do guarding motions to ensure her back is not aggravated. Tr. 9-10. She also testified that she left her job as a police officer because she cannot sit in her car for a long time, she cannot stand in one place for a long time, she cannot apprehend suspects or defend herself in an altercation, and she cannot pull or lift or carry anything heavy. Id. at 19-22. An April 2013 private treatment record indicates the Veteran reported constant back pain with flare-ups for one day that was alleviated by rest. The April 2012 SSA Decision indicates a vocational expert opined that due to the Veteran's "age, education, work experience, and residual functional capacity [she] would not be able to perform her past work as a police officer." See SSA Decision at 9. Thus, the SSA decision found that she was "unable to perform past relevant work." Id. A November 2011 C&P back examination indicates current symptoms include constant pain and constant numbness, and due to flare-ups she is unable to bend, sit for a prolonged time, or walk on uneven surfaces. The examiner indicated that the Veteran's back has diminished range of motion and pain on movement. The examiner also noted the Veteran's reports that her back condition impacts her ability to work, specifically with respect to sitting in the police car and defending herself in a physical altercation. A March 2010 private treatment record indicates the Veteran reported having not worked in 2 years and that she was unable to work as a police officer at this point. The note also indicates that the Veteran reported pain in her back and lower extremities, aggravated by sitting, bending, and sudden movements. A July 2008 private treatment record indicates the Veteran's gait and station were slightly antalgic and that she had difficulty standing up from a seated position. The Board finds that the Veteran's service-connected disabilities preclude her from securing or following a substantially gainful occupation consistent with her work history as a police officer. Work as a police officer involves driving, sitting for potentially long periods of time in the car, getting in and out of the car, walking, running, and the ability to run, defend oneself in an altercation, and apprehend individuals. In other words, police work involves a full spectrum of diverse physical tasks requiring agility, sudden movements, reflexes, strength, speed, and stamina. As described above, the Veteran's service-connected disabilities are productive of symptoms that would preclude the Veteran from performing these types of tasks on a daily basis. The treatment records and examinations described above, and the Veteran's reports of her symptoms therein, consistently indicate that her disabilities produce pain, flare-ups, soreness, stiffness, locking up, numbness; difficulty with lifting, carrying, and pulling; and the inability to sit, stand, or walk for prolonged periods. The Board highlights that the April 2021, November 2018, and November 2011 C&P examiners agreed that the Veteran's disabilities impacted her ability to work. The April 2021 C&P examiner opined that the Veteran's back pain and radiculopathy precluded work that requires back rotation and/or monitoring of personnel and equipment. A January 2021 treatment note indicates that the Veteran was unable to walk for a few days and her pain was so severe it caused fainting. The November 2018 C&P examination noted that sometimes the Veteran's back locks up and she gets stuck in a bent position. The same examiner also observed balance problems and noted that the Veteran must walk slowly as a result. A June 2017 treatment note indicates the Veteran must lean on something when standing or walking at the store. A March 2010 record observes that the Veteran's pain was aggravated by sudden movements. A July 2008 record indicates the Veteran had difficulty standing up from a seated position. Significantly, a vocational expert in her SSA case opined that the Veteran was unable to perform her past work as a police officer. The vocational expert in that case also testified that there are some jobs in the national economy that the Veteran was able to perform, and examples of such jobs included work as a gate guard, a companion, and a desk clerk. See SSA Decision at 10. The expert testified that these jobs are light and semiskilled and can accommodate a sit or stand option. Id. The Board finds that this evidence does not weight against granting a TDIU in this case. The inquiry as to whether the Veteran is entitled to TDIU benefits in this case involves examining whether the Veteran is precluded from securing or following (i.e., maintaining or keeping) a substantially gainful occupation. Based on the Veteran's symptoms and residual functional limitations, as described above, the Board finds that the record does not demonstrate by a preponderance of the evidence that the Veteran would be able to maintain or keep substantially gainful employment, even if secured. The Board further finds that even if the Veteran could secure employment as a gate guard or desk clerk as suggested by the SSA expert, her symptoms and functional limitations would impact her ability to perform such work on a day-to-day basis; thus, affecting her ability to follow substantially gainful employment. Although the light and semiskilled jobs proposed by the expert as viable options for the Veteran can accommodate sitting and standing, the Veteran's medical records, as well as her own lay reports, consistently document that even sitting and standing cause pain, stiffness, locking-up, and are difficult to perform. Furthermore, the SSA expert's opinion was rendered in 2012 and the Veteran's symptoms have worsened since then. See April 2021 and November 2018 C&P examinations; Tr. 6, 11. In sum, the probative evidence of record demonstrates that the Veteran's service-connected disabilities preclude her from securing or following substantially gainful employment. Specifically, she does not have work experience or education that is readily applicable to a sedentary occupation based on the ordinary meaning of the term, which the Board broadly defines as white-collar office-type work. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). However, even if she did have experience readily applicable to a sedentary occupation, the Veteran's medical records document that she would have difficulty with sitting for prolonged periods. The evidence shows that while no single disability precludes the Veteran from maintaining or following substantially gainful employment, the collective impact of her service-connected disabilities does. Accordingly, for reasons and bases outlined above, entitlement to an extraschedular TDIU from July 31, 2008, to November 15, 2018, and entitlement to a schedular TDIU from November 16, 2018, is granted. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, 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.