Citation Nr: 21072258 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 16-58 917 DATE: December 2, 2021 ORDER Entitlement to a TDIU on an extra-schedular basis prior to schedular eligibility for the period prior to July 26, 2010 is denied. FINDING OF FACT The preponderance of the evidence is against a finding that the Veteran's service-connected disabilities render him unable to secure or follow substantially gainful employment on an extra-schedular basis prior to schedular eligibility for the period prior to July 26, 2010. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extra-schedular basis prior to schedular eligibility for the period prior to July 26, 2010 have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1977 to April 1981, and from July 1987 to September 2003. Entitlement to a TDIU on an extra-schedular basis prior to schedular eligibility for the period prior to July 26, 2010 The Veteran contends that he is unable to work due to his service-connected disabilities prior to July 26, 2010, the date which he met schedular requirements for TDIU. 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 disability. See 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a); Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993); see also 38 C.F.R. § 4.19. When a veteran's schedular rating is less than total (for a single or combination of disabilities), a total rating may be assigned provided that if there is only one service-connected disability, this disability shall be rated at 60 percent or more. When there are two or more disabilities, at least one disability must be ratable at 40 percent or more, and any additional disabilities must result in a combined rating of 70 percent or more, and the disabled person must be unable to secure or follow a substantially gainful occupation. See 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). 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). Prior to July 26, 2010, the Veteran had a combined evaluation of 30 percent for service-connected disabilities which included arthritis of the left knee, cervical foraminotomy and radiculopathy of the right upper extremity each assigned with a 10 percent evaluation and non-compensable evaluations for degenerative arthritis of the right knee, left inguinal hernia repair, hepatitis C ,lower lip leukoplakia, right forearm scar and residual scar from basal cell carcinoma, S/P removal from the left shoulder. The Veteran attended a VA knee examination in November 2009 which revealed no instability, ankylosis and no patellar or meniscus abnormality. The Veteran was noted to have a slight limp favoring the left. He had flexion from 0 to 85 degrees with pain. Poor effort was noted by the examiner and X-ray showed degenerative changes. It was noted that the Veteran was working full time. Private physician records from Jacksonville Orthopaedic Institute in April 2010, noted that the Veteran appeared healthy and in no acute distress. Neurological evaluation revealed normal sensation to light touch and normal coordination. Examination of the left knee revealed 20 degrees of extension and 90 degrees of flexion. There was tenderness along the medial and lateral joint lines but no instability. X-ray revealed osteoarthritis of the left knee. Progress notes from Dr. D.L.H. show treatment for hypertensive heart disease, rheumatoid arthritis, osteoarthrosis of the left knee and insomnia. On examination of the extremities, there was no edema, cyanosis, clubbing or tremors. In a May 2021 Advisory Opinion, the Executive Director of Compensation Service determined the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment prior to September 1, 2011. The Board finds that for the period prior to July 26, 2010, the Veteran did not meet the schedular criteria for consideration for entitlement to TDIU on a schedular basis because his combined rating evaluation of 30 percent for service-connected disabilities do not satisfy the percentage requirements. i.e.. He did not have a single disability of 60 percent disabling, nor do he have one that is 40 percent disabling with a total combined disability rating is 70 percent. 38 C.F.R. § 4.16(a). There has been no evidence submitted to show that the Veteran's service-connected disabilities including left and right knee arthritis and cervical spine disabilities were of such severity prior to July 2010 that they would have interfered with his employment as the evidence demonstrates that he was working full time. It is the established policy of the Department of Veterans Affairs that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. None of the available evidence supports the contention that any of his service-connected disabilities or a combination of the effects of the disabilities prevents all types of gainful activity prior to July 26, 2010. Further, the Director of Compensation Service provided consideration to all relevant evidence, including, but not limited to the Veteran's education, training, and work history. It was determined that the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment prior to September 1, 2011, following his temporary total evaluation from July 2010 to September 2011. Entitlement to a TDIU on an extra-schedular basis prior to schedular eligibility for the period prior to July 26, 2010, is denied. REMANDED Entitlement to an acquired psychiatric disorder to include as secondary to service-connected disabilities is remanded. Entitlement to service connection for a low back condition is remanded. REASONS FOR REMAND In February 2021, the Board most recently remanded the issues on appeal for further development, and the case has since been returned to the Board. The Board finds that the AOJ has not substantially complied with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an acquired psychiatric disorder to include as secondary to service-connected disabilities is remanded. In the February 2021 Board remand, the AOJ was directed to "develop and adjudicate a claim for entitlement to service connection for an acquired psychiatric disability secondary to the Veteran's service-connected disabilities." To date, this development and adjudication has not occurred. Accordingly, an additional remand is required for this development. Entitlement to service connection for a low back condition is remanded. In the February 2021 Board remand, the AOJ was directed to obtain several low back opinions. Specifically, the examiner was required to consider the March 2011 medical record and March 2016 private medical record. Further, the examiner was required to provide secondary proximation and aggravation opinions as well. Several opinions were provided in April 2021; however, the Board finds these opinions inadequate. Indeed, the examiner failed to consider the March 2011 medical record and March 2016 private medical record as required. Further, the examiner based his negative aggravation opinion solely on the fact that he had also provided a negative proximation opinion. Accordingly, a remand is required for addendum opinions. The matters are REMANDED for the following action: 1. Obtain a VA opinion with an appropriate clinician (if possible, an orthopedic specialist) for the Veteran's low back disability. The entire claims file, to include a copy of this Remand, should be made available to, and be reviewed by, the examiner. The need for an additional examination of the Veteran is left to the discretion of the clinician. The examiner is asked to opine whether the Veteran's low back disability at least as likely as not (1) began during active service, to include related to his April 1988 complaint of back pain, (2) manifested within one-year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. When rendering an opinion, the examiner is MUST consider the March 2011 medical record whether the Veteran indicated that his low back pain began a decade ago. The examiner is also asked to opine whether the Veteran's low back disability is at least as likely as not (1) proximately due to the service-connected left knee disability, or (2) aggravated beyond its natural progression by the service-connected left knee disability. When rendering an opinion, the examiner MUST consider the March 2016 medical record where the Veteran's private practitioner noted that the Veteran has serious continued left knee issues that are severely affecting his gait and the gait disturbance may be contributing to his continued back pain. The examiner is reminded that any opinions expressed should be accompanied by a complete rationale. 2. Develop and adjudicate a claim for entitlement to service connection for an acquired psychiatric disability secondary to the Veteran's service-connected disabilities. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. A. Elliott II, 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.