Citation Nr: 21073441 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 16-29 414 DATE: December 8, 2021 ORDER 1. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted from December 9, 2019, subject to the laws and regulations governing the payment of monetary benefits. REMANDED 2. Entitlement to a compensable rating for peripheral neuropathy of the right lower extremity is remanded. 3. Entitlement to a TDIU prior to December 9, 2019, to include on an extraschedular basis, is remanded. FINDING OF FACT The Veteran meets the schedular requirements for a TDIU, and the combined effects of his service-connected disabilities render him unable to obtain or maintain substantially gainful employment, effective December 9, 2019. CONCLUSION OF LAW Effective December 9, 2019, the criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1996 to August 1997. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision by Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded this matter in October 2019 and April 2021. In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives as to the issue decided herein and will proceed with review. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to a TDIU from December 9, 2019 The Veteran's TDIU claim stems from the Veteran's January 18, 2012 increased rating claim for his service-connected right lower extremity peripheral neuropathy. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Total disability ratings for compensation may be assigned, in circumstances where the schedular rating is less than total, 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 disabilities provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reasons of service-connected disabilities shall be rated totally disabled. Therefore, in the case of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards set forth in 38 C.F.R. § 4.16(a), the case should be submitted to the Director of Compensation and Pension Service for extraschedular consideration. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). The central inquiry is "whether a Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Here, the Veteran has multiple service-connected disabilities, which are staged from October 1997. The Veteran is service connected for major depressive disorder at a rate of 30 percent from January 18, 2012 to February 13, 2018; 50 percent from February 14, 2018 to December 8, 2019, and 70 percent from December 9, 2019; migraines at a rate of 50 percent from October 1, 2010; chronic shin splints of the right lower extremity at a rate of 10 percent from August 3, 1997; and chronic shin splints of the left lower extremity at a 10 percent rate from January 18, 2012. The Veteran is also in receipt of a noncompensable rating for peripheral neuropathy of the right lower extremity. The Veteran's combined rating for compensation is 10 percent from August 3, 1997 to January 17, 2012; 50 percent from January 18, 2012 to February 13, 2018; 60 percent from February 14, 2018 to December 8, 2019; 80 percent from December 9, 2019 to September 30, 2021; and 90 percent from October 1, 2021. The Board finds that from December 9, 2019, the Veteran meets the schedular requirement for TDIU. 38 C.F.R. § 4.16(a). Therefore, the Board must determine whether the Veteran's disabilities caused the Veteran to be unemployable. The evidence establishes that the Veteran last worked in 2002. The Veteran worked in manufacturing and as a stock room coordinator. The Veteran's VA treatment records document that the Veteran had a history of suicidal ideations prior to December 9, 2019. Treatment records note that the although the Veteran was a risk for suicide, he did not have any suicidal ideations. The record documents that the Veteran had suicidal ideations, intent, and plan in November 2020. In January 2020, the Veteran underwent a knee and lower leg VA examination. The examiner noted that a sedentary work environment would be desirable for the Veteran. In January 2020, the Veteran underwent a VA psychiatric examination. The examiner documented that the Veteran had symptoms of difficulty establishing and maintaining effective work and social relationships; difficulty in adapting to stressful circumstances, including work or a work like setting; and an inability to establish and maintain effective relationships. In August 2020, the Veteran underwent a peripheral nerves VA examination. The examiner documented the peripheral nerve disability impacted his ability to work. The examiner specifically stated that the Veteran had difficulty with prolonged standing and walking due to the lower extremity pain and numbness. In May 2021, VA obtained an addendum medical opinion related to the right lower extremity peripheral neuropathy. The examiner stated that the Veteran had difficulty with prolonged standing and walking due to the right lower extremity pain and numbness. The examiner noted there was no impact on sedentary work, though the examiner did document the Veteran had difficulty with activities that involved prolong standing and walking. In February 2020, the Veteran stated that the symptoms from his neuropathy push him to suicidal ideation. The Veteran stated that due to his service-connected disabilities he stayed his bed all day with no motivation to get out of bed. In June 2021, the Veteran stated that he had not worked for the past 19 years. The Veteran stated that the medications he had to take for his major depressive disorder, peripheral neuropathy, and bilateral shin splints impacted him to the extent that he was unable to do his job. The Veteran stated that six days of the week he had no drive, energy, or motivation to get out of bed. The Veteran stated that the pain in his legs caused him to be fired from his job in 2004. The Veteran stated he could not climb, lift, jump, kneel, squat, stand, sit, or walk for more than five minutes because of the flare-ups and weakness in his legs. The Veteran noted that these issues added to the impacts of his depression. The Veteran stated that his medication did not allow him to function in a work setting at all. The Veteran stated he could not concentrate or remember very much. The Veteran stated that his paranoia caused him not to leave the house. The Veteran stated that he had panic attacks. The Veteran stated these issues caused suicidal ideations. The Board finds that from December 9, 2019 entitlement to a TDIU is warranted. Initially, the Board notes that from at least January 2020 the record is clear that the Veteran was unable to work, even in a non-sedentary work environment. Notwithstanding the evidence that the Veteran was unable to work in a non-sedentary setting, the Board finds that combination of the Veteran's lower extremity disabilities and the Veteran's psychiatric disorder preclude the Veteran from gainful employment from December 9, 2019. The presence of suicidal ideations, the inability to work in a stressful work setting, difficulty establishing relationships in a work setting, and the Veteran's own statements that the medication he took for his disabilities caused an inability to be motivated to get out of bed, render the Veteran unemployable. As such, the Board finds the Veteran meets the schedular requirement, and TDIU is granted, effective December 9, 2019. REASONS FOR REMAND 2. Entitlement to a compensable rating for peripheral neuropathy of the right lower extremity The Veteran contends that his peripheral neuropathy of the right lower extremity is more severe than currently rated. In April 2021, the Board remanded this matter for an addendum medical opinion. Specifically, the Board required that the examiner address the July 2020 VA examination report that documented the Veteran had mild incomplete paralysis of the sciatic nerve, the external popliteal, and the musculocutaneous nerve, while the January 2020 VA examination documented that only the saphenous nerve was affected. The Board directed the examiner to provide a detailed description as to the severity and symptoms specifically attributable to each nerve involved. In May 2021, VA obtained a medical opinion regarding the Veteran's right lower extremity peripheral neuropathy. The examiner stated the Veteran reported pain, numbness, and tingling bilateral in the lower and upper extremities of mild severity. The examiner noted the symptoms were suggestive of a wide cutaneous nerve distribution as seen with a radiculopathy of mild incomplete paralysis. The examiner stated the Veteran had difficulty with prolonged standing and walking due to lower extremity pain and numbness. The examiner documented that there was no impact on sedentary work, although the Veteran had difficulties with actives that involved prolonged standing and walking. In June 2021, the Veteran stated that he had pain, weakness, flare-ups, numbness, burning, and loss of control of his bowels. The Veteran stated his peripheral neuropathy had intensified. He stated that he lost balance and fell frequently because his leg gave out. The Veteran noted he had leg cramps and constant stabbing pain shooting up and down his leg from the thigh to the bottom of his foot. The Veteran stated he could not walk more than a few minutes without a flare-up, and he could not stand or sit up for more than five minutes. The Board finds that a remand is required. The May 2021 VA medical opinion does not fully address the medical record. The May 2021 VA examiner stated that the Veteran's nerve affected was the cutaneous nerve. The examiner failed to discuss the previous January and July 2020 examiner's opinions that documented that the saphenous sciatic nerve, the external popliteal nerve, and the musculocutaneous nerve were affected. The Board finds a remand for examination is required to address the full medical record to include the VA examination reports that described incomplete paralysis of different nerves. Further, the Veteran's statement in June 2021 suggests that the severity of his peripheral neuropathy may be more severe since the May 2021 VA medical opinions and that he had flare-ups. Therefore, upon examination the examiner must also describe the severity of the Veteran's radiculopathy during a flare-up. 3. Entitlement to a TDIU prior to December 9, 2019 Prior to December 9, 2019, the Veteran does not meet the schedular criteria for consideration of a TDIU. This matter therefore is intertwined with the Veteran's claim for a compensable disability rating for his peripheral neuropathy of the right lower extremity. Further, if the Veteran fails to meet the threshold minimum percentage standards enunciated in in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases when the Veteran is unable to secure or follow substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board cannot assign an extraschedular evaluation in the first instance under § 4.16(b). Nevertheless, the Board may adjudicate whether a referral to the Director, Compensation Service is warranted when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Once a referral for an extraschedular TDIU rating under section 4.16(b) is made by the Board, the Director of Compensation Service then determines whether an extraschedular TDIU evaluation under § 4.16(b) is warranted. At that juncture, only then does the Board have jurisdiction to decide the TDIU claim on the merits when it returns. In fact, the Court has specifically held that, although the Board is precluded from initially assigning an extraschedular rating on its own, there is no restriction on the Board's ability to review the adjudication of an extraschedular rating under 38 C.F.R. § 4.16(b) or § 3.321(b)(1), once the Director of Compensation and Pension determines that an extraschedular rating is not warranted. Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2009). Accordingly, the Board must make the initial determination as to whether referral to the Director of Compensation Service is appropriate for an extraschedular evaluation under section 4.16(b). In this regard, as discussed above, there is plausible evidence of record that, prior to December 9, 2019 the Veteran may have been unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, such that referral to the Director of Compensation Service for a possible extraschedular evaluation for TDIU under 38 C.F.R. § 4.16(b) is warranted. In light of the plausible evidence of unemployability discussed in the decision above, a remand is required for the Director of Compensation Service to determine if an extraschedular rating is warranted for a TDIU under 38 C.F.R. § 4.16(b) prior to December 9, 2019. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected right lower extremity peripheral neuropathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. (a) The examiner must document which nerves are affected by the Veteran's nerve disorder. The examiner must address previous VA examinations, specifically the examinations conducted in January 2020 and July 2020, that noted the internal saphenous nerve and the sciatic nerve, the external popliteal, and the musculocutaneous nerve, respectively. (i) If the examiner determines a specific nerve is affected, the examiner must provide a full explanation, including addressing previous VA findings in the January 2020, July 2020, and May 2021 examination reports. (b) The examiner must provide a description of the severity of the Veteran's right lower extremity neuropathy, including during a flare-up. 2. After the above development is completed and if the Veteran does not meet the schedular requirements for TDIU for the entire period on appeal, the AOJ must submit the issue of an extraschedular TDIU under 38 C.F.R. § 4.16(b) to the Director of Compensation Service. The Veteran's employment history, educational and vocational attainment, and all other factors having a bearing on his employability (or lack thereof) should be discussed. See Kuppamala McDonald, 27 Vet. App. 447 (2015). A. Keninger Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Robert Batten 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.