Citation Nr: 21074112 Decision Date: 12/14/21 Archive Date: 12/14/21 DOCKET NO. 16-59 266 DATE: December 14, 2021 ORDER From November 16, 2015, entitlement to a total disability rating due to individual unemployability (TDIU) is granted. REMANDED Prior to November 16, 2015, entitlement to a TDIU, to include on an extraschedular basis, is remanded. Entitlement to a rating for lumbar spine degenerative disc disease with spondylosis, scoliosis and intervertebral disc syndrome (low back disability) in excess of 20 percent is remanded. Entitlement to an initial rating for right lower extremity radiculopathy in excess of 10 percent prior to October 23, 2018, and thereafter in excess of 20 percent, is remanded. Entitlement to an initial rating for left lower extremity radiculopathy in excess of 10 percent prior to October 23, 2018, and thereafter in excess of 20 percent, is remanded. FINDING OF FACT From November 16, 2015, the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation. CONCLUSION OF LAW From November 16, 2015, the criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1966 to May 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from October 2013 and June 2017 rating decisions by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In August 2019, the Board denied an increased rating for an acquired psychiatric disorder and remanded for additional development the issues of entitlement to service connection for gastroesophageal reflux disease (GERD) and entitlement to a TDIU and an increased rating for a low back disability and bilateral lower extremity radiculopathy. In June 2021, the Board granted entitlement to service connection for GERD and remanded for issuance of a Supplement Statement of the Case (SSOC) the issues of entitlement to a TDIU and an increased rating for a low back disability and bilateral lower extremity radiculopathy. In October 2021, the Veteran appealed the initial rating assigned for GERD. This appeal will be addressed separately under VA's modernized appeals system. As discussed in the Reasons for Remand section below, remedial action is required to address a due process violation. However, the present record supports the award of entitlement to a TDIU, and the Board's allowance of that benefit will not prejudice the Veteran. In this regard, the Board has bifurcated that issue and is remanding entitlement to a TDIU prior to the date that the Veteran met the schedular criteria for that benefit. See Locklear v. Shinseki, 24 Vet. App. 311 (2011) (bifurcation of an issue is generally within the Board's discretion). 1. From November 16, 2015, entitlement to a TDIU is granted. The Veteran asserts that he is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. The Board agrees. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. The Veteran is in receipt of a 30 percent rating for a psychiatric disorder prior to November 16, 2015 and a 50 percent rating thereafter; a 20 percent rating for a low back disability; a 10 percent rating for right lower extremity radiculopathy prior to October 23, 2018 and a 20 percent rating thereafter; a 10 percent rating for left lower extremity radiculopathy prior to October 23, 2018 and a 20 percent rating thereafter; and a zero percent rating for GERD. Thus, he meets the schedular criteria for a TDIU from November 16, 2015, as from that date he is in receipt of a combined 70 percent disability evaluation with a single disability rated at least 40 percent disabling. The Veteran does not at present meet the schedular criteria for entitlement to a TDIU prior to November 16, 2015; although he has a combined 60 percent disability evaluation, the record does not show that any of the conditions set forth in 38 C.F.R. § 4.16(a)(1)-(5) are met. In this regard, the Veteran's psychiatric disorder is the result of stressors during his service in Vietnam including his base being mortared and seeing fellow soldiers wounded and killed, see November 2016 rating decision, while his back disability and radiculopathy are due to being in a fight and being run over by a truck, see July 2012 Board Decision. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran's ability to secure or follow substantially gainful employment, including factors such as the veteran's history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Before relying on an examiner's finding that a veteran is capable of sedentary work to deny a TDIU, the Board must explain how it interprets that concept in the context of the case. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). Here, the Board interprets "sedentary work" in its usual sense, specifically white-collar office-type work. The Veteran asserts he last worked 20 hours per week as a school bus driver in 1996. See December 2016 VA Form 21-8940. This is corroborated by a Social Security Administration (SSA) disability benefits decision, with determined that he last engaged in substantial gainful activity in May 1996. See March 1998 SSA Determination; see also March 2017 Correspondence (reporting he has not worked since resigning from the school system). Thus, as the Veteran is not shown to be receiving substantially gainful income from employment, the economic component of a TDIU is met. Turning to the noneconomic component, the Veteran has a high school diploma. See December 2016 VA Form 21-8940. He reports working as a school bus driver from 1993 through 1996 and working as an independent welder. See March 2017 Correspondence. He also reported working as a study hall monitor and self-employed handyman. See March 1998 SSA Determination. As noted above, the Veteran is in receipt of SSA disability benefits. The SSA determined that due to his low back disability and bilateral lower extremity radiculopathy, the Veteran is unable to perform his past relevant work and does not have acquired transferrable work skills. See March 1998 SSA Determination. The medical evidence of record shows that due to the Veteran's low back disability and radiculopathy, he cannot tolerate prolonged sitting, standing, walking, squatting, climbing, bending, pushing, pulling, twisting, or heavy lifting. See January 2020 Back Examination Report; January 2021 Back Examination Report. Additionally, the record shows that the Veteran takes pain medication for his back disability and radiculopathy and requires the regular use of a cane and occasional use of a walker. See id. Additionally, the Veteran takes medication for his psychiatric disorder that may negatively impact his ability to drive and operate machinery. See, e.g., June 6, 2017 VA Mental Health Note. The SSA determination and VA examination reports are highly probative evidence that the Veteran's low back disability and radiculopathy preclude him from securing or maintaining a substantially gainful occupation. The Veteran's inability to sit for prolonged periods precludes his prior work as a school bus driver and his inability to lift heavy objects precludes his work as a welder. Moreover, his limited mobility and inability to sit or stand for prolonged periods precludes his work as a study hall monitor. Indeed, the March 1998 SSA Determination likewise concluded that the Veteran's low back disability with radiculopathy precludes substantially gainful occupational activity. Although this decision is not binding on the Board, it is probative evidence. In contrast, the probative evidence of record does not show that the Veteran is able to secure and maintain substantially gainful activity, notwithstanding the limitations from his service-connected disabilities. While there is no medical opinion of record that the Veteran is unemployable, the Board emphasizes that the question of whether a veteran can secure and maintain substantially gainful employment is not a medical question and is within the province of VA adjudicators. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Thus, as the probative evidence of record weighs in favor of the claim, entitlement to a TDIU is warranted from November 16, 2015, the earliest date of schedular eligibility. REASONS FOR REMAND 2. Prior to November 16, 2015, entitlement to a TDIU, to include on an extraschedular basis, is remanded. The Board has awarded entitlement to a schedular TDIU and concludes that there is a reasonable possibility of substantiating entitlement to an extraschedular TDIU. Accordingly, on remand the issue of entitlement to a TDIU prior to November 16, 2015 will be referred to the Director of Compensation Service for extraschedular consideration. 3. Entitlement to a rating for a low back disability in excess of 20 percent is remanded. 4. Entitlement to a rating for right lower extremity radiculopathy in excess of 10 percent prior to October 23, 2018, and thereafter in excess of 20 percent, is remanded. 5. Entitlement to a rating for left lower extremity radiculopathy in excess of 10 percent prior to October 23, 2018, and thereafter in excess of 20 percent, is remanded. The June 2021 Board decision and remand explicitly directed that the AOJ furnish an SSOC to the Veteran and his representative. See June 2021 Board Decision and Remand at 5. However, the AOJ erroneously failed to provide the Veteran's representative with a copy of the August 2021 SSOC. See, e.g., August 2021 SSOC at 1 (showing no representative). Thus, the AOJ failed to substantially comply with the Board's remand directives and failed to afford the Veteran due process. See 38 C.F.R. § 19.31(b). The Board observes that the Veteran appointed the Mississippi State Veterans Affairs Board as his representative. See October 1998 VA Form 21-22. The AOJ subsequently requested that the Veteran use a new form appointing his power of attorney. See November 2017 Correspondence. The form submitted by the Veteran did not include his representative's signature. See December 2017 VA Form 21-22. However, the record does not show any intent to revoke the power of attorney in favor of the Mississippi State Veterans Affairs Board, and thus that organization remains his representative. On remand, the AOJ should furnish a copy of an SSOC to the Veteran and his representative. The matters are REMANDED for the following actions: 1. Refer the matter of entitlement to an extraschedular TDIU prior to November 16, 2015 to the Director of Compensation Service. The Director's attention is invited to the March 1998 SSA Determination (July 2017 SSA/SSI Letter). 2. Furnish the Veteran and his representative with an SSOC. The AOJ is advised that the Board recognizes the Mississippi State Veterans Affairs Board as the Veteran's representative. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.