Citation Nr: 21065989 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 14-37 899 DATE: October 28, 2021 THE ISSUES 1. Entitlement to a TDIU due solely to service-connected degenerative changes of the lumbar spine and associated radiculopathy of the left and right lower extremities on an extraschedular basis prior to January 15, 2010. 2. Entitlement to an earlier effective date prior to June 2, 2008 for the grant of Dependents' Educational Assistance ("DEA"). ORDER For the period from December 30, 2005 to January 15, 2010, entitlement to a TDIU due solely to service-connected degenerative changes of the lumbar spine and associated radiculopathy of the left and right lower extremities on an extraschedular basis is granted. For the period from December 30, 2005 to June 2, 2008, entitlement to dependents educational assistance (DEA) is granted. FINDINGS OF FACT 1. During the period from December 30, 2005 to January 15, 2010, the Veteran's service-connected back disability and associated radiculopathy of the left and right lower extremities alone rendered him unable to obtain and maintain substantially gainful employment. 2. Entitlement to DEA is established for the period from December 30, 2005 to June 2, 2008. CONCLUSIONS OF LAW 1. The criteria to establish TDIU from December 30, 2005 to January 15, 2010 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16, 4.18, 4.19, 4.25. 2. The criteria for entitlement to DEA were met as of December 30, 2005. 38 U.S.C. § 3510; 38 C.F.R. § 3.807(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the U.S. Army from April 1967 to April 1969. The Veteran died in May 2021. The appellant is his surviving spouse These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2013 and May 2018 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO). If a claimant dies while a claim for any benefit under a law administered by the Secretary, or an appeal of a decision with respect to such a claim, is pending, a living person who would be eligible to receive accrued benefits due to the claimant under section 5121(a) of this title may, not later than one year after the date of death of such claimant, file a request to be substituted as the claimant for the purposes of processing the claim to completion. 38 U.S.C. § 5121A (a). Here, the Veteran died in May 2021. At the time of his death, the Veteran had perfected his substantive appeal. In June 2021, his surviving spouse filed her application for substitution of claimant upon death of claimant. In August 2021, the appellant was determined to be eligible for substitution. See 38 U.S.C. § 5121A (a)(1). Therefore, the Board finds that the appellant has been properly substituted as the claimant for purposes of processing the Veteran's claim to completion. During the pendency of these claims and appeal, the Veteran, in October 2014, requested a hearing. However, he withdrew that request in November 2014, and he and his representative again confirmed a hearing is not requested in December 2015 and November 2019, respectively. As such, the Board finds that the Veteran has properly withdrawn his hearing request and the adjudication of the Veteran's claims may proceed accordingly. These issues were previously before the Board in April 2015 and September 2017 and remanded for additional development. A May 2018 Board decision denied entitlement to an increased rating in excess of 50 percent for a psychiatric disability and granted entitlement to TDIU. In an August 2019 decision, the Board remanded the matter of an extraschedular TDIU prior to June 2, 2008. Meanwhile, the Veteran appealed the Board's May 2018 decision to the United States Court of Appeals for Veterans Claims (Court), which in a July 2019 order, granted the parties' joint motions for remand (JMR), vacating the Board's April 2018 decision with respect to the denial of entitlement to an increased rating in excess of 50 percent for an acquired psychiatric disability and remanding the claim for compliance with the terms of the JMR. Upon remand, the Veteran argued that the Board should consider entitlement to TDIU based on the back alone and raised entitlement to special monthly compensation. Finally, in a December 2019 decision, the Board remanded the issue of entitlement to an extraschedular TDIU based on a back disability alone prior to January 15, 2010 to the Director of Compensation Service. Therefore, the Board has recharacterized the issue of entitlement to a TDIU to reflect the Veteran's most recent contentions. 1. For the period from December 30, 2005 to January 15, 2010, entitlement to a TDIU due solely to service-connected degenerative changes of the lumbar spine and associated radiculopathy of the left and right lower extremities on an extraschedular basis is granted. The Veteran has asserted that he should be entitled to a TDIU based solely on his service-connected back disability prior to January 15, 2010. Initially, the Board notes that the procedural history of the current claim is complex. The Veteran was first granted entitlement to a TIDU in a May 2018 Board decision. In a May 2018 rating decision, the RO implemented the May 2018 Board decision and set an effective date of June 10, 2009. The Veteran submitted a Notice of Disagreement (NOD) in January 2019, disagreeing with the effective date of the TDIU assigned in the May 2018 rating decision. The RO issued a new rating decision in June 2019, granting an earlier effective date of June 2, 2008 for the grant of a TDIU. In its August 2019 decision, the Board remanded the matter for extraschedular consideration of a TDIU prior to June 2, 2008 from the VA Director of Compensation Service (Director). Thereafter, the Veteran appealed the May 2018 Board decision which in part denied an increased disability rating in excess of 50 percent for an acquired psychiatric disability to the Court. The Court, in a November 2019 Joint Motion Remand, partially vacated the May 2018 Board decision. Upon remand to the Board, the Veteran's attorney argued that the Veteran's back disability alone rendered him unable to obtain or maintain gainful employment. In a December 2019 decision, the Board granted the Veteran entitlement to a schedular TDIU based solely on his back disability from January 15, 2010. The Board also remanded the matter for extraschedular consideration of a TDIU prior to January 15, 2010 based solely on a back disability from the Director. The Veteran is currently in receipt of TDIU benefits due to the combined effects of his service-connected disabilities. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a Veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Again, the matter to be decided here is limited to whether the Veteran's TDIU can be awarded based upon the Veteran's lumbar spine disability alone, prior to January 10, 2010. Service connection is in effect for degenerative changes of the lumbar spine, rated 40 percent disabling since December 30, 2005; radiculopathy and neurological deficits of the left lower extremity associated with degenerative changes of the lumbar spine, rated 20 percent disabling since June 10, 2009. The Veteran last worked as a dye mounter in 2001. He held that position full time from 1965 to 2001. See December 2013 Veteran's application for increase compensation based on unemployability. An October 2013 VA examiner determined the Veteran's back condition rendered him unable to secure and maintain a physical type of occupation. In a January 2015 private employability evaluation, R.B. determined, after a review of the claims file, that from October 2005 on, due solely to low back pain with nerve root compression, the Veteran would be unable to maintain any competitive employment. The Board remanded the matter in August 2019 in order to refer the issue of a TDIU prior to June 2, 2008 for extraschedular consideration in front of the Director. In a separate December 2019 decision, the Board referred the issue of a TDIU based solely on the Veteran's back disabilities prior to January 15, 2010 to the Director. In September 2020, the Director issued a memo which determined that the issue of entitlement to a TDIU under provision § 4.16(b) had been rendered moot. Instead, the Director evaluated the Veteran's lumbar spine disability with associated radiculopathy under the provision of 38 C.F.R. § 3.321(b)(1). The Veteran's service-connected disability ratings alone did not meet the criteria for consideration of TDIU on a schedular basis prior to January 15, 2010. The Board may not, in the first instance, grant a TDIU on an extraschedular basis. See Bowling v. Principi, 15 Vet. App. 1 (2001). Here, however, the matter of entitlement to an extraschedular TDIU due to service-connected disabilities had already been referred to the Director of Compensation Service. While the opinion of the Director concluded that an extraschedular rating for the Veteran's back disability was not warranted, such opinion is not binding on the Board. Indeed, the memo did not address the Board's August and December 2019 directives, as it did not specifically consider extraschedular TDIU on the basis of a low back disability alone prior to January 15, 2010. The Director's extraschedular decision is one of fact, and is reviewable by the Board on a de novo basis; it may serve to inform the Board's review, but it is not evidence. Kuppamala v. McDonald, 27 Vet. App. 447, 456-58 (2015); see also Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) ("[A]lthough the Board is precluded from initially assigning an extraschedular rating, there is no restriction on the Board's ability to review the denial of an extraschedular rating on appeal."). Indeed, the Board is permitted to review the entirety of the proceedings below. 38 U.S.C. § 7104 (a) (stating that the Board's review is "based on the entire record in the proceeding and upon consideration of all evidence and material of record"). With respect to the term "in the first instance," the Court has clarified that the Board may assign extraschedular ratings when reviewing either a grant or a denial of an extraschedular rating by the Director. Kuppamala, 27 Vet. App. at 456. The evidence reflects that the Veteran's lumbar spine disabilities precluded him from substantially gainful employment during the entire period prior to January 15, 2010. This conclusion is supported by findings of VA physicians, Social Security records, and a private vocational expert. The Veteran's education consists of a high school degree. His most recent employment history, as noted above, was in 2001, and prior to leaving that employer, he was transferred to lighter duties due to his back pain. The appellant and the Veteran, prior to his death, have asserted, and the Board agrees, that his service-connected back disabilities precluded his participation in occupations that involved physical work and also occupations which required prolonged periods of standing and walking. The medical evidence shows long standing back pain upon simple extension movements. See October 2005 VA treatment record; see also May 2006 VA examination. This pain was observed to limit his ability to walk distances longer than just twenty-five feet, as well as negatively affect his ability to complete activities of daily living. See November 2006 VA examination. Likewise, this pain was noted to worsen with ordinary physical actions, such as prolonged sitting, standing, walking, and bending. See April 2007 VA treatment record. A grant of TDIU is warranted when service-connected disabilities preclude gainful employment, whether or not the schedular criteria are met. In this case, after affording the Veteran the benefit of the doubt, an extraschedular TDIU based solely on service-connected back disabilities is warranted effective December 30, 2005. 2. For the period from December 30, 2005 to June 2, 2008, entitlement to dependents educational assistance (DEA) is granted. The criteria for basic eligibility to DEA benefits are met where: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability. 38 U.S.C. § 3510; 38 C.F.R. § 3.807(a). As the Board has determined that TDIU is warranted from December 30, 2005 to June 2, 2008, the schedular requirements for DEA are also met for this period. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. E. Geary, 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.