Citation Nr: 21072933 Decision Date: 12/06/21 Archive Date: 12/06/21 DOCKET NO. 14-19 857 DATE: December 6, 2021 ORDER Prior to March 9, 2021, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is granted, subject to controlling regulations governing the payment of monetary awards. From March 9, 2021, entitlement to a total disability rating based on individual unemployability (TDIU) is granted, subject to controlling regulations governing the payment of monetary awards. FINDINGS OF FACT 1. Prior to March 9, 2021, the Veteran service-connected disabilities render him unable to secure and follow a substantially gainful occupation. 2. From March 9, 2021, the Veteran service-connected disabilities render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. Prior to March 9, 2021, the criteria for a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. From March 9, 2021, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Marine Corps from May 1976 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2021, the Board remanded the matter for further evidentiary development, specifically, for an up-to-date employment history including the Veteran's claims of being a massage therapist who taught massage and reflexology. In May 2021, the RO requested the Veteran submit an updated employment history with the VA. No response was received. In July 2021, the RO sent a subsequent request for the Veteran to submit an updated employment history. Again, no response was received. In August 2021, the RO issued a supplemental statement of the case continuing the denial of entitlement to a TDIU. The RO declined to send the issue to the Director of Compensation Services for extraschedular consideration. The Board finds that there has been substantial compliance with these remand directives, and the Board will proceed with the adjudication of this appeal. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). VA will grant TDIU benefits when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one service-connected disability, the disability must be rated at 60 percent or more to qualify for schedular TDIU. If there are two or more service-connected disabilities, there must 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). 1. TDIU prior to March 9, 2021 Where the schedular rating is less than total, a total disability rating may nonetheless be assigned 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 service-connected disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § §§ 3.340, 3.341(a), 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to secure and follow substantially gainful employment. See 38 C.F.R. § §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term unemployability is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. § §§ 3.341 (a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term unable to secure and follow a substantially gainful occupation as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Prior to March 9, 2021 the Veteran was service connected for lumbar spine degenerative disc disease and joint disease assigned a 20 percent rating throughout the appellate period and a right-side sciatic nerve disability associated with lumbar spine degenerative disc disease and joint disease assigned a 20 percent rating. Consequently, the Veteran has not satisfied the threshold minimum percentage rating requirements of 38 C.F.R. § 4.16 (a) for schedular TDIU consideration during prior to March 9, 2021. Because the Veteran's combined rating did not meet the percentage standards of 38 C.F.R. § 4.16 (a) for the appeal period prior to March 9, 2021, the issue of entitlement to a TDIU may be considered only under 38 C.F.R. § 4.16 (b). It is the established policy of VA that all Veterans who are individually unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Such an extraschedular TDIU may be assigned in exceptional cases to a veteran who is found to be unemployable because of service-connected disabilities but does not meet the percentage standards set forth in § 4.16(a). The Board cannot consider entitlement to TDIU under 38 C.F.R. § 4.16(b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board did so in its February 2021 remand. In February 2021, the Director of Compensation Services provided an advisory opinion on the Veteran's claim for extraschedular of TDIU. The Director concluded that entitlement to TDIU was warranted, as the Veteran's service-connected back condition with lower extremity radiculopathy does result in impairments to functioning, however, does not show the back condition would preclude all forms of substantially gainful activity, including in a sedentary or semi-sedentary environment. The Board conducts de novo review of the Director's decision denying extraschedular consideration under 38 C.F.R. § 4.16(b) and the Director's decision is in essence the decision of the AOJ and not evidence. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) ([T]he Director's decision [pursuant to 38 C.F.R. § 4.16(b) is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence). For the following reasons, the Board finds that, the evidence is at least in equipoise as to whether the Veteran was able to secure and maintain substantially gainful employment prior to March 9, 2021. A January 2009 VA examination report reflects that the Veteran had increased tardiness and absenteeism due to his back and that the Veteran suffered from memory loss, decreased concentration, decreased mobility, decreased manual dexterity, problems with lifting and carrying, difficulty reaching, lack of stamina, weakness or fatigue, decreased strength, urinary incontinence, and pain. The Veteran reported that he is unable to work well because he drives a delivery truck and has to constantly go in and out of the truck. A December 2009 VA examination report shows that the Veteran reported working mostly in construction and worked as a truck driver until 2009 when he quit. He further reported that he experienced flare-ups three to four times a week, that pain persisted for several hours, and that he had to lie down and was unable to work at all. A November 2012 treatment note reflects that the Veteran's low back pain was exacerbated by driving and any kind of work and interfered with his normal activities of daily living. Additionally, a September 2014 treatment note indicates that the Veteran reported he could not work due to his pain. Results from a VA examination in 2019 show that manual labor activities are precluded. Sedentary work was described as being tolerated as long as the Veteran can sit, stand, and walk about to his comfort level. Social Security records show that the Veteran has been granted disability benefits due to an affective (mood) disorder and disorder of the back as well as bilateral knee disabilities, and hip pains. The SSA records note that the Veteran stopped working because of his medical conditions, primarily his affective mood disorder. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert). The fact that the Veteran's non-service connected disabilities may also render him unemployable does not affect the Board's analysis, as non-service connected disabilities cannot be considered under the above cited regulations in adjudicating the issue of entitlement to a TDIU. Moreover, the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one but is rather a determination for the adjudicator. Id. The severity of the symptoms of the Veteran's service-connected back and radiculopathy disabilities, and his educational and occupational experience, reflects that the evidence is approximately evenly balanced on the question of whether the Veteran's service connected disabilities prior to March 9, 2021 precluded all substantially gainful employment for which his education and occupational experience would otherwise qualify him. The reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran. Thus, entitlement to a TDIU, on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b), is granted prior to March 9, 2021. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. TDIU from March 9, 2021 From March 9, 2021 the Veteran was service connected for depression with anxious distress associated with degenerative disc disease and joint disease rated as 70 percent disabling, lumbar spine degenerative disc disease and joint disease assigned a 20 percent rating throughout the appellate period and a right-side sciatic nerve disability associated with lumbar spine degenerative disc disease and joint disease assigned a 20 percent rating throughout the appellate period. The Veteran is in receipt of a combined 80 percent rating as of September March 9, 2021. Therefore, he meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU. Thus, the next question for consideration is whether his service-connected disabilities prevent him from securing and following substantially gainful employment. The Veteran was afforded a VA psychological examination in April 2021. Here the examiner diagnosed the Veteran with depression due to degenerative disc disease and joint disease of the lumbar spine with anxious distress. The examiner found that the Veteran has only one psychological disability. The examiner found that the Veteran experiences occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. The examiner found that the Veteran's psychological disability is due to his service-connected disabilities and that the Veteran's symptoms cause impairments in daily function including work, social and family relationships. The Veteran's biggest difficulties in everyday living include chronic sleep impairment causing fatigue, appetite issues and irritability. The Veteran's feelings of low motivation, sadness and isolation from physical pain disrupt claimant's ability to maintain relationships with family members and friends, as claimant continues to feel depressed, helpless, sad and increasingly isolates. The above reflects that the Veteran's service-connected depression with anxious distress and degenerative disc disease and joint disease of the lumbar spine have had a significant impact on his ability to work at a job for which he is qualified by his education and occupational history, to the extent they would render him unable to secure or follow substantially gainful employment. Although no medical professional has expressed an opinion as to whether the Veteran's service-connected disabilities rendered him unemployable, the applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Given the foregoing, the evidence is at least evenly balanced as to whether the Veteran's service-connected depression with anxious distress and degenerative disc disease and joint disease of the lumbar spine disabilities render him unable to secure and follow a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU from March 9, 2021 is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Rachel Walker Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Lent, Edward 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.