Citation Nr: 21070164 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 14-20 519A DATE: November 23, 2021 ORDER Beginning May 25, 2021, entitlement to a total rating based on individual unemployability (TDIU) is granted. REMANDED Prior to May 25, 2021, entitlement to a TDIU on an extraschedular basis is remanded. FINDING OF FACT Resolving all doubt in favor of the Veteran, the evidence demonstrates that the Veteran's service-connected disabilities preclude all forms of substantially gainful employment beginning May 25, 2021. CONCLUSION OF LAW Effective May 25, 2021, the criteria for entitlement to a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1983 through July 2004. This matter comes before the Board of Veterans' Appeals (BVA or Board) on appeal from September 2011 and August 2021 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was provided a hearing before the undersigned Veterans Law Judge in August 2016. In January 2019 and July 2020, the Board remanded this matter to the Agency of Original Jurisdiction (AOJ) for additional development. The appeal has since returned to the Board. 1. Beginning May 25, 2021, entitlement to a TDIU is granted. In a January 2019 BVA decision, the Board determined that entitlement to a TDIU had been raised by the record as part and parcel of the then-pending claim for an increased rating for the service-connected back disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009), 22 Vet. App. 447. That increased rating claim had been pending since June 2011. Thus, the TDIU claim is deemed to have also been pending since that date of claim. Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). To establish a total disability rating based on individual unemployability, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. In reaching such a determination, the central inquiry 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). 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; provided that permanent total disability shall be taken to exist when the impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 4.15. Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. 38C.F.R. §4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. During the pendency of this appeal, the Veteran has been service-connected for radiculopathy, right lower extremity associated with degenerative disc disease and degenerative joint disease, lumbar spine with a 10 percent rating from May 20, 2014 and 40 percent from May 25, 2021; radiculopathy, left lower extremity associated with degenerative disc disease and degenerative joint disease, lumbar spine with a 40 percent rating from May 25, 2021; pseudofolliculitis barbae with a 30 percent rating from August 1, 2004; degenerative disc disease and degenerative joint disease, lumbar spine with a 20 percent disability rating from January 15, 2010; radiculopathy, anterior crural nerve (femoral) (right lower extremity) associated with degenerative disc disease and degenerative joint disease, lumbar spine with a 20 percent disability rating from May 25, 2021; right elbow fracture postoperative with a 10 percent disability rating from August 1, 2004; tinnitus with a 10 percent disability rating from August 1, 2004; radiculopathy, anterior crural nerve (femoral) (left lower extremity) associated with degenerative disc disease and degenerative joint disease, lumbar spine with a 10 percent disability rating from August 24, 2011; and residual scar associated with degenerative disc disease and degenerative joint disease, lumbar spine with a noncompensable disability rating from February 20, 2020. Based on these percentages, the Veteran had a combined rating of 40 percent from August 1, 2004, 60 percent from January 15, 2010, and 90 percent beginning May 25, 2021. Consequently, prior to May 25, 2021, he did not meet the minimum disability rating threshold for schedular TDIU consideration. However, beginning May 25, 2021, he met the minimum disability rating threshold for schedular TDIU consideration. Entitlement prior to May 25, 2015 is addressed further below. Concerning entitlement to a TDIU beginning May 25, 2021, the Veteran submitted a TDIU application in January 2019 that indicated that his service-connected degenerative disc disease and degenerative joint disease prevented his engagement in substantial gainful activity. He reported that he last worked in fulltime November 20, 2016 and that his disabilities affected his fulltime employment on March 15, 2014. He had left his last employment due to his disabilities. Regarding his education, he had completed college and received additional education between January 1, 2010 and December 15, 2015. He had no other training since becoming too disabled to work. In a February 2020 VA examination, the Veteran reported that his lumbar spine pain becomes more severe with bending forward too quickly or repeatedly, or with heavy lifting, carrying, or prolonged standing. The examiner found that the Veteran would not be able to perform physically demanding work. In June 2021, the Veteran submitted to a peripheral nerve VA examination. Here, he reported that he had a hard time functioning on a daily basis, including performing personal hygiene and dressing himself. The examiner determined that the Veteran's peripheral neuropathy disability causes him to have severe functional limitations of not lifting greater than 10 pounds, not sitting greater than five minutes, not standing greater than five minutes, and not walking greater than half a block. At the August 2016 hearing, the Veteran testified that he is restricted to working 20 hours a week and must have frequent breaks as prescribed by his physician. In other lay statements of record, he indicated that he cannot work to support himself or his family. As late as September 2021, the Veteran indicated that he was not gainfully employed. Based on the aforementioned, beginning May 25, 2021, the Veteran did meet the minimum schedular rating requirements for a TDIU. Additionally, resolving all doubt in favor of the Veteran, the Veteran's service-connected disabilities result in severely restricted functional abilities that preclude his engagement in securing and following substantial gainful activity. In so finding, the Board takes notice that the Veteran's peripheral neuropathy disabilities restrict the Veteran from sitting or standing for more than five minutes. Additionally, the record demonstrates that he cannot work more than 20 hours a week and requires frequent breaks because of his service-connected degenerative disc disease and degenerative joint disease of the lumbar spine. Such limitations would affect the Veteran's concentration, productivity, and ability to perform the physical demands of any work that the Veteran would be qualified to perform considering his education and work history. Thus, entitlement to a TDIU, effective May 25, 2021, is granted. REASONS FOR REMAND 1. Prior to May 25, 2021, entitlement to a TDIU on an extraschedular basis is remanded. As addressed above, the issue of entitlement to TDIU has been raised by record and is considered to be pending since his claim for an increased rating for the back disability on June 22, 2011. In a September 2011 statement, the Veteran indicated that he could not work to support his family. In the August 2016 hearing, the Veteran indicated that he had several accommodations at work, including taking as a lot of breaks, having a special chair, and working only 20 hours a week. In March 2014, the Veteran's treating provider restricted him to not working in excess of 20 hours per work week and no prolonged standing or bending, or lifting greater than 20 pounds. He also needed frequent breaks due to chronic back pain. In August 2018, the Social Security Administration granted the Veteran's claim for disability benefits. As noted above, the Veteran did not meet the schedular rating criteria for TDIU prior to May 25, 2021. Therefore, the Board may not consider his claim for a TDIU in the first instance for that period; however, it will refer it to the Director, Compensation Service, as there is a reasonable possibility that he may have been unemployable by reason of service-connected disabilities, prior to May 25, 2021. 38 C.F.R. § 4.16(b). The matter is REMANDED for the following action: Refer the Veteran's claim for TDIU to VA's Director of Compensation Service for extraschedular consideration, from June 22, 2011 to May 25, 2021. Review of the whole file is required; however, attention is invited to: the September 1, 2011, statement in support of claim; August 8, 2013 correspondence; July 14, 2014 Medical Treatment Record Government Facility, page 50 out of 144, including a medical statements limiting work to 20 hours; August 1, 2016 hearing testimony discussing accommodations at work. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N.B. Mmeje, 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.