Citation Nr: A21017253 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 210609-166261 DATE: October 26, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) on an extraschedular basis due to service-connected disabilities, effective October 23, 2009, is granted. REMANDED Entitlement to an initial disability evaluation in excess of 20 percent, to include on an extraschedular basis, for service-connected degenerative disc disease of the lumbar spine effective October 23, 2009, is remanded. Entitlement to a disability evaluation in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine effective April 12, 2019, is remanded. Entitlement to an initial disability evaluation in excess of 10 percent effective February 1, 2011, and in excess of 20 percent effective May 12, 2015, for service-connected left lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine is remanded. Entitlement to an initial disability evaluation in excess of 10 percent effective February 1, 2011, and in excess of 20 percent effective May 12, 2015, for service-connected right lower extremity radiculopathy associated with degenerative disc disease of the lumbar spine is remanded. FINDING OF FACT The record evidence shows that, effective October 23, 2009, the Veteran's service-connected disabilities, alone or in combination, precluded him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU effective October 23, 2009, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1965 to November 1966. This matter comes before the Board of Veterans' Appeals (Board) via a June 2021 VA Form 10182, Notice of Disagreement, in response to two May 2021 Supplemental Statements of the Case (SSOCs). Previously, this matter was before the Board in the "legacy" docket via appeal of an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In December 2015, the RO granted entitlement to separate evaluations for the Veteran's service-connected bilateral lower extremity radiculopathy, which the Veteran also appealed. In January 2019, the Board granted entitlement to a 20 percent disability evaluation for service-connected degenerative disc disease of the lumbar spine effective May 12, 2015; entitlement to an initial disability evaluation of 10 percent effective February 1, 2011, and a disability evaluation of 20 percent effective May 12, 2015, for left lower extremity radiculopathy; and entitlement to an initial disability evaluation of 10 percent effective February 1, 2011, and a disability evaluation of 20 percent effective May 12, 2015, for right lower extremity radiculopathy. The Board in the same decision remanded the issues of entitlement to a disability evaluation in excess of 20 percent for service-connected degenerative disc disease of the lumbar spine and entitlement to a TDIU. The Veteran then appealed the decided issues to the United States Court of Appeals for Veterans Claims (Court). By way of a February 2020 Order, the Court granted the parties' January 2020 Joint Motion for Partial Remand (JMPR) and returned the matter to the Board. In June 2020, the RO granted entitlement to a disability evaluation of 40 percent for service-connected degenerative disc disease of the lumbar spine effective April 12, 2019. Most recently, in August 2020, the Board remanded the above-listed issues on appeal. After the RO conducted further development, TDIU was granted effective April 12, 2019, in an October 2020 rating decision. The RO then issued two SSOCs in May 2021, to which the Veteran responded by properly and timely filing a VA Form 10182, effectively moving this matter to the Board's docket under the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). Accordingly, this decision is written as consistent with the new AMA framework. 1. TDIU Effective October 23, 2009 Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age or nonservice-connected disabilities. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a), 4.19; Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The claimant's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be considered. 38 C.F.R. § 4.16(b). Total disability will be considered to exist 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. § 4.15. While the rating is based primarily upon the average impairment in earning capacity, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects on occupational activities, to defects in physical or mental endowment prevent the usual amount of success in overcoming the handicap of disability, and to the effect of combinations of disability. Id. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment shall generally be deemed to exist when a veteran's earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment, such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Though the Board must fully consider "the effect of combinations of disability" in its determination, "neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. (citing 38 C.F.R. § 4.16(a)). Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. Certain percentage requirements must be satisfied to qualify for schedular consideration of TDIU. Specifically, if unemployability is the result of only one service-connected disability, this disability must be ratable at 60 percent or more. 38 C.F.R. § 4.16(a). If it is the result of two or more service-connected disabilities, at least one disability must be ratable at 40 percent or more, with the others sufficient to bring the combined rating to 70 percent or more. Id. Disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system such as orthopedic disabilities, will be considered as one disability for TDIU purposes. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The Veteran asserts that he is entitled to a TDIU effective October 23, 2009, to include on an extraschedular basis. Effective October 23, 2009, the Veteran's sole compensable service-connected disability was degenerative disc disease of the lumbar spine rated as 20 percent disabling. Effective February 1, 2011, the Veteran's compensable service-connected disabilities were rated as follows: degenerative disc disease of the lumbar spine as 20 percent disabling; left lower extremity radiculopathy as 10 percent disabling; and right lower extremity radiculopathy as 10 percent disabling. Effective May 12, 2015, to April 12, 2019, the Veteran's compensable service-connected disabilities were rated as follows: degenerative disc disease of the lumbar spine as 20 percent disabling; left lower extremity radiculopathy as 20 percent disabling; and right lower extremity radiculopathy as 20 percent disabling. When combined, including the bilateral factor, the Veteran's service-connected disabilities were evaluated as 20 percent disabling effective October 23, 2009; 40 percent disabling effective February 1, 2011, and 50 percent disabling effective May 12, 2015. Consequently, from October 23, 2009, to April 12, 2019, the criteria for schedular consideration of TDIU are not satisfied. 38 C.F.R. § 4.16(a). However, VA regulations provide that if a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation and Pension Service (Director) for extraschedular consideration all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of a service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). Following the Board's August 2020 remand, VA forwarded the Veteran's claim to the Director for consideration under an extraschedular basis, as the Board is precluded from granting an extraschedular rating in the first instance. See Bowling v. Principi, 15 Vet. App. 1 (2001). In May 2021, the Director issued two Advisory Opinions against entitlement to TDIU on an extraschedular basis due to the evidence of record supporting "some functional limitations due to the Veteran's service-connected lumbar spine and associated bilateral radiculopathy, the preponderance of the evidence is against the finding that the Veteran's service-connected disabilities precluded employment prior to April 12, 2019" and indicated that he "was successfully employed for many years, prior to the establishment" of his service-connected disabilities. See May 2021 Advisory Opinions (both labeled VA Memo). However, despite this denial and the Board's requirement to obtain the Director's decision before awarding extraschedular benefits, the Board 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). Therefore, the Board will review the Director's determination de novo. The Veteran's April 2015 DRO testimony indicates that he worked for various companies during which time he would travel; however, his service-connected back disability made traveling for work "very difficult" as he "could [not] do a lot of sitting and writing at times" including affecting his ability to drive. See April 2015 DRO Hearing Testimony. The Veteran then reported that he went into business for himself and conducted hands-on work until his back disability and bilateral lower extremity radiculopathy caused him to be unable to climb ladders, in and out of houses, and in and out of ditches. See id. The Board finds that self-employment is a protected environment, as the Veteran could make his own hours and set his schedule to conduct his plumbing business. Additionally, records from the Social Security Administration (SSA) reflect that the Veteran has been disabled from working since August 2008 primarily due to his service-connected lumbar spine disability. See July 2009 SSA Disability Determination and Transmittal (received in February 2011). The Veteran's numerous examinations throughout the period on appeal also indicate the severe impact of his service-connected disabilities on his ability to work. In May 2012, the VA examiner found that the Veteran could only walk approximately 100 yards without stopping to rest and could only stand for a few minutes. The August 2014 VA examiner concluded that the Veteran's conditions would limit "both a physical and sedentary type of job." Finally, the May 2015 VA examination report reflects that the Veteran would be unable to lift more than 10-15 pounds, walk for more than three to five minutes, stand for more than one minute, and sit for more than 30-45 minutes. As a final matter, the Board has previously acknowledged receipt of the Director's opinion denying entitlement to TDIU on an extraschedular basis in May 2021. However, in June 2020, a DRO recommended the allowance of TDIU on an extraschedular basis effective October 23, 2009, because "the evidence as a whole supports the service-connected lumbar spine condition renders the Veteran incapable of a gainful physical or sedentary occupation because he is unable to walk, stand, or sit for prolonged periods" and his medication "makes him sleepy, affects his ability to concentrate, and affects his ability to drive." See June 2020 DRO Advisory Opinion. Based on the above, to include consideration of the Veteran's work history, education and medical assessments, medical records, and competent statements, the evidence of record reflects that the Veteran's service-connected disabilities impacted his ability to work, to the point of the Veteran being unable to maintain employment, or if he did, to fulfill his regular duties in his previous positions. Therefore, resolving all reasonable doubt in the Veteran's favor, the Board finds that the probative evidence of record is in equipoise, and therefore in favor of the Veteran not being able to secure and/or maintain any substantially gainful occupation due to his service-connected disabilities effective October 23, 2009. Thus, entitlement to a TDIU on an extraschedular basis effective October 23, 2009, is warranted and the Veteran's claim is granted. REASONS FOR REMAND 1. Lumbar Spine Effective October 23, 2009 In the August 2020 remand, the Board requested that the Veteran's claim for entitlement to a disability evaluation in excess of 20 percent, including on an extraschedular basis, be referred to the Director for an opinion and to include in said opinion an adequate statement of reasons and bases to include review of the Veteran's medical evidence demonstrating multiple back surgeries and continuous treatment for his condition. Here, the Board acknowledges receipt of an opinion from the Director denying entitlement to an increased disability evaluation on an extraschedular basis. The Director stated that "[t]here has been no factual demonstration of impairment to earning capacity based on exceptional or unusual factors" and that "there is no impairment in/of earning capacity due to exceptional or unusual factors related to marked interference with employment or frequent periods of hospitalization." See December 2020 Advisory Opinion (labeled VA Memo). However, the Director did not address the evidence of record as discussed in the August 2020 remand, such as private medical records indicating surgery conducted in March 2009 and multiple steroid injections since that time. A remand confers on claimants, as a matter of law, the right to compliance with the remand orders and on the VA a concomitant duty to ensure substantial compliance with the terms of the remand. Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Here, the Board finds that the December 2020 Advisory Opinion did not cite to the evidence of record and therefore provided an inadequate statement of reasons and bases. The RO, in relying on this inadequate opinion, conducted a pre-decisional duty to assist error, which must be corrected in the form of obtaining a new opinion regarding entitlement to extraschedular consideration from the Director. Also, the Board notes that the Veteran's examinations prior to April 12, 2019, not only indicate the presence of flare-ups, but also reflect that passive range of motion testing and/or non-weight bearing testing were not conducted. See May 2012 VA Thoracolumbar Spine C&P Examination; August 2014 VA Thoracolumbar Spine C&P Examination; May 2015 VA Thoracolumbar Spine C&P Examination. The Court ruled that 38 C.F.R. § 4.59 requires that examinations should include joint testing for pain during both active and passive motion and with weight bearing and non-weight bearing circumstances. Correia v. McDonald, 28 Vet. App. 158 (2016). The Court also found that when flare-ups are reported, the examiner should elicit information as to the severity, frequency, duration, precipitating factors, and alleviating factors of flare-ups, and estimate, per the Veteran, to what extent, if any, they affect functional impairment. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Because the RO did not adjudicate the severity of the Veteran's condition prior to April 2019 in light of the Court's rulings in Correia and Sharp by obtaining additional opinions as to the Veteran's degenerative disc disease's severity, the Board finds that a pre-decision duty to assist error has been made which must be corrected in the form of obtaining a retrospective opinion. Chotta v. Peake, 22 Vet. App. 80 (2008). 2. Lumbar Spine Effective April 12, 2019 In October 2020, prior to issuance of the May 2021 SSOC regarding this issue, the VA received a September 2020 medical record indicating that the Veteran underwent another back surgery approximately one month prior by an outside provider. See September 2020 VA Pharmacy Outpatient Note (Veteran reports having had back surgery "last month" through non-VA means). Receipt of this record put the RO on notice that the Veteran had recently seen a private provider and undergone medical treatment that has not been affiliated with the claims file. Accordingly, the RO made a pre-decisional duty to assist error, which much be corrected by obtaining the Veteran's updated private medical records, including records relating to surgery conducted in August 2020, and schedule the Veteran for a new examination (if feasible) to assess the current severity of his degenerative disc disease of the lumbar spine. 3. Left Lower Extremity Radiculopathy 4. Right Lower Extremity Radiculopathy Regarding the Veteran's bilateral lower extremity radiculopathy, the Board notes that the severity of his condition has not been properly evaluated throughout the period on appeal. Specifically, the May 2015 VA examination reflects "severe" symptoms of radiculopathy, including intermittent pain, paresthesias and/or dysesthesias, and numbness. However, the examiner concluded that, overall, the Veteran's bilateral radiculopathy was "mild." This internal inconsistency causes the Board to question the adequacy of the examination regarding radiculopathy. Additionally, the November 2018 examination regarding radiculopathy indicates that the Veteran exhibited both mild and severe symptomatology; however, again, the examiner found that there was "mild" radiculopathy to the Veteran's various lower extremity nerves bilaterally. The examiner also concluded that the nerves affected "originate from the sciatic nerve." Here, as the RO relied on examinations that contradict themselves internally, the Board finds that a pre-decisional duty to assist error has been made, which must be resolved in the form of another retrospective opinion regarding the Veteran's bilateral lower extremity radiculopathy throughout the period on appeal. The matters are REMANDED for the following action: 1. The RO should request the Veteran to identify any and all outstanding and/or updated VA and/or private medical records regarding his service-connected degenerative disc disease of the lumbar spine, to include records from an August 2020 back surgery conducted by a non-VA provider. Appropriate efforts must be made to obtain these records if he has adequately identified them and authorized their release (with respect to any private medical records). He should also be invited to submit these records himself. All actions to obtain the requested records should be fully documented in the claims file. If they cannot be located or no such records exist, the Veteran and his representative should be so notified in writing. 2. Then, schedule the Veteran for an appropriate examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible) to determine the severity of the Veteran's service-connected degenerative disc disease of the lumbar spine throughout the period on appeal. Regarding the current severity of the Veteran's service-connected degenerative disc disease of the lumbar spine, the examiner must test the Veteran's active motion, passive motion, and pain with weight bearing and non-weight bearing. The examiner must attempt to elicit information regarding the severity, frequency, duration, precipitating factors, and alleviating factors of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the Veteran's degenerative disc disease of the lumbar spine alone and the effect of such on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given the medical science and known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). Based on review of the claims file, including the Veteran's VA and private medical records and lay statements regarding his lumbar spine symptomatology, the examiner should render an opinion addressing whether, at any point from October 23, 2009, to April 12, 2019, the record reflects any change(s) in the severity of the Veteran's degenerative disc disease of the lumbar spine, and, if so, the approximate date(s) of any such change(s), including the degrees of additional range of motion lost during flare-ups, if possible and range of motion measures for active motion, passive motion, and in weight bearing and non-weight bearing. If the examiner cannot provide this retrospective estimate, the clinician should state why and provide a reasoned explanation for the determination. 3. If the RO, after receipt of this opinion, finds that entitlement to an increased schedular evaluation from October 23, 2009, to April 12, 2019, is inappropriate, forward the claims file, including the examiner's findings, to the Director of Compensation and Pension Service for an opinion regarding entitlement to an increased disability evaluation on an extraschedular basis from October 23, 2009, to April 12, 2019. In formulating the opinion, the Director should provide an adequate statement of reasons and bases supporting its determination, including referencing the Veteran's VA and private medical records related to his consistent medical treatment and back surgeries during the period on appeal. 4. Forward the claims file to an appropriate clinician for a new opinion as to the severity of the Veteran's left lower extremity radiculopathy and right lower extremity radiculopathy. If the clinician determines that a new examination (or telehealth interview, etc., if an in-person examination is not feasible) would be beneficial, one is to be provided. Based on review of the claims file, including the Veteran's VA and private medical records and lay statements regarding his radiculopathy symptomatology, the examiner should render an opinion addressing whether, at any point from October 23, 2009, to the present, the record reflects any change(s) in the severity of the Veteran's left lower extremity radiculopathy and right lower extremity radiculopathy, and, if so, the approximate date(s) of any such change(s). The clinician should also attempt to reconcile the inconsistent findings in the May 2015 and November 2018 examinations regarding severe symptoms but overall mild radiculopathy. If the clinician cannot provide this retrospective and/or current estimate, the clinician should state why and provide a reasoned explanation for the determination. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Hoffman 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.