Citation Nr: 21074831 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 13-06 515A DATE: December 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted on an extraschedular basis from September 29, 2009, subject to the laws and regulations governing monetary benefits. FINDING OF FACT The most probative evidence reflects that the Veteran's service-connected disabilities, in concert, prevented him from participating in a substantially gainful occupation from September 29, 2009, to the present. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis are met from September 29, 2009, to the present. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16 (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1979 to April 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), the agency of original jurisdiction (AOJ). The Veteran expressed disagreement with this determination and the present appeal ensued. In December 2015, the Veteran testified at a hearing before a Veterans Law Judge. A transcript of the December 2015 Board hearing has been associated with the file. This matter was previously before the Board in February 2016, at which time it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran. In a May 2018 decision, the Board denied the Veteran's appeal, and he appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In March 2019, the parties filed a Joint Motion for Remand which agreed to set aside and vacate the Board's May 2018 decision. The Court granted the motion in April 2019 and issued an order that vacated the Board decision and remanded the claims for compliance with the Joint Motion for Remand (JMR). The Veteran's appeal was remanded by the Board in August 2019 and July 2021 for development in furtherance of the parties' agreements in the Court-endorsed March 2019 JMR. This matter is now again before the Board for appellate consideration. In May 2021, the Veteran was informed that the VLJ who conducted the December 2015 hearing is no longer employed by the Board. He was also informed of his right to request another optional Board hearing. The Veteran did not respond within 30 days, and thus, he has not opted to have another hearing. 1. Entitlement to a TDIU Generally, total disability will be considered to exist when there is present any impairment of mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings are authorized for any disability or combination of disabilities for which the Schedule for Rating Disabilities prescribes a 100 percent disability evaluation, or, with less disability, if certain criteria are met. Id. When the schedular rating is less than total, a total disability rating for compensation may be assigned when the disabled person is considered to be 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, or if there are two or more disabilities, there shall be at least one ratable at 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, 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 reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). For those veterans who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16(a), a TDIU nevertheless may be assigned on an extra-schedular basis under the special provisions of § 4.16(b). An extraschedular rating is warranted when the case presents such an unusual disability picture with related factors such as marked interference with employment as to render impractical the application of the regular schedular standards. Id. But the Board cannot grant a TDIU on an extra-schedular basis in the first instance; the Board must first refer the claim to the Director of the Compensation Service for initial consideration if there is suggestion the Veteran is unemployable owing to his service-connected disabilities. In Ray v. Wilkie, 31 Vet. App. 58 (2109), the Court held that the initial extra-schedular referral decision under 4.16 (b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. The Director then performs his or her duties and, if the Director denies an extra-schedular rating, the Board then, reviewing that decision without deference and bearing in mind the benefit of the doubt standard, decides whether the preponderance of the evidence shows that a veteran is unemployable by reason of his or her service-connected disabilities. The Court held that the phrase "unable to secure and follow a substantially gainful occupation" under § 4.16(b) has two components: one economic and one noneconomic. The economic component is defined as an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce for one person. Addressing the noneconomic component,the Court held that attention must be given to: The veteran's history, education, skill and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required to the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations, and; whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant further include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate ability and productivity. The Court advised that it was not creating a checklist that must be run completely through in every case. Discussion of any factor is only necessary if raised by the evidence. Analysis Initially, the Board observes that the Veteran's TDIU appeal was raised by the record during the pendency of an appeal seeking an increased evaluation for his service-connected low back disability, which was received by the AOJ on September 29, 2010. As such, the TDIU appeal is considered part and parcel of the Veteran's claim for an increased evaluation, and thus, the appeal period for consideration for the Board is from September 29, 2009, to the present. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). The Veteran's combined evaluation for his service-connected disabilities (involving the low back and paired sciatic and femoral nerves) is below the threshold for a schedular TDIU for the entirety of the appeal period. However, because the evidence shows that these disabilities, in concert, negatively impacted his employability during the appeal period, the Board referred the matter of extraschedular consideration for the Veteran's TDIU claim to the Director of the AOJ's Compensation Service in July 2021. 38 C.F.R. § 4.16 (b). In the September 2021 advisory opinion, the Director recommended denial of entitlement to a TDIU on an extraschedular basis. 38 C.F.R. § § 3.321(b)(1), 4.16 (b). The Director found that the evidence fails to support a finding that the service-connected disabilities or a combination of the effects of those disabilities prevented substantially gainful employment. The Director found that there is no medical evidence of inability to perform sedentary employment due to service-connected conditions. As the Director has issued a decision, the issue is now before the Board to be addressed on the merits. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). The Board notes that the Director's decision is not evidence, but is rather akin to a de facto AOJ decision, and the Board must conduct de novo review of the decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). Here, regarding the economic component, the record shows that the Veteran, who completed one year of a high school education and has received vocational training pertinent to elevator construction, worked from October 1982 to March 2009 in elevator maintenance. On February 13, 2012, he submitted a determination from the Social Security Administration (SSA) reflecting an approval of his claim for benefits from that Administration. The SSA determined that the Veteran became too disabled to work on January 1, 2011, and cited VA medical records related to his service-connected degenerative arthritis of the spine and paralysis of the left lower sciatic nerve. The non-economic component of an extraschedular TDIU claim goes to the Veteran's individual ability to secure and follow substantially gainful employment. Attention must be given to: (1) The veteran's history, education, skill, and training; (2) Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, and auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. As noted in Withers v. Wilkie, Aug 20, 2018, 30 Vet. App. 139 (2018), the finding of an inability to work is not a medical determination, but is a legal determination made on a case-by-case basis. Further, an award of TDIU "does not require proving 100 percent unemployability." Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). To this point, the Board again notes that the Director's decision is not evidence, but rather a de facto AOJ decision, and the Board must conduct de novo review of the decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). The Court will review evidence related to the Veteran's individual ability to secure and follow substantially gainful employment and the Director's decision. At an October 2010 VA examination, the examiner noted that the Veteran experienced severe sciatica during service in 1981, which had progressively worsened. The examiner diagnosed degenerative joint disease, lumbar spine. The examiner noted that the Veteran reported flare-ups and was able to function with moderate limitations. The examiner noted that the Veteran worked in elevator maintenance for 28 years and was laid off due to increased absenteeism. The Veteran testified at a hearing in December 2015. He testified that he experiences muscle spasms in his back at least once per week. He stated that he was put on bed rest due to throwing his back out, four or five times per year on average. He stated that he has felt like he can't bend his back. He stated that he takes Tylenol PM which relaxes him and helps him sleep and goes to a chiropractor. He also uses Lidoderm patches or Biofreeze to help alleviate the pain. He stated that his back disorder affects him "in almost everything I do." He stated that he gets flareups where he can feel the sciatic nerve starts to get quite painful and has to do bed rest and ice and sometimes a TENS unit. He stated that he receives Social Security disability benefits and was forced to retire early, largely due to his back disability. He stated that his VA primary care doctor wrote him a letter to the SSA related to their decision on his disability claim. He also stated that his VA doctor told him his back is "five times as worse" and suggested that he put in for an increase in his disability rating. It was noted at the hearing that there was an "inferred IU claim" and that the first impairment mentioned in the SSA decision is the back disability. At a July 2017 VA examination, the examiner noted diagnoses of degenerative arthritis of the spine and intervertebral disc syndrome. The Veteran reported daily lumbar pain and radicular pain to the left lower leg. The Veteran reported flare-ups that affect the range of motion due to increased pain. When flare-ups occurred, the Veteran stated that he must lie down and ice his lumbar back. The examiner noted that pain, fatigue, and lack of endurance as likely as not would result in functional loss with repeated use. The examiner found that the Veteran's lumbar back condition precludes gainful physical occupations such as lifting, loading, or climbing but does not preclude sedentary occupations. At a February 2021 examination, the examiner noted the diagnosis of degenerative disc disease of the lumbar spine on January 23, 2006; radiculopathy left lower extremity sciatic and femoral nerve, January 23, 2006; herniated disc on January 23, 2006 and February 9, 2011; degenerative arthritis of the spine in February 9, 2011; and radiculopathy right lower extremity sciatic and femoral nerve on July 28, 2016. The examiner noted that since his last examination in 2017, the Veteran's back condition has worsened. He reported daily low back pain with radiating pain down his left leg into his foot. As to the functional impact on the Veteran's ability to work, the examiner noted that degenerative arthritis and degenerative disc disease of the lumbar spine; herniated disc, impact the Veteran's ability to bend over, and stand and sit for prolonged periods. Radiculopathy left lower extremity also impacts the Veteran's ability to sit and stand for prolonged periods. At a June 2021 VA examination, MRI testing results were central herniation of disc material at L5-S1 with collapse of the disc space and secondary degenerative arthritic changes, stable since 2009; slight bulging of the disc at L4-L5; and secondary hypertrophic degenerative arthritic changes in the facets especially at L4-L5 and L5-S1. As to impact on ability to perform occupational tasks, the examiner found that the Veteran would have difficulty bending, walking, and standing for long periods related to his degenerative arthritis of the lumbar spine and radiculopathy, left lower extremity. In view of above, the Board concludes that the most probative evidence reflects that the Veteran's service-connected disabilities, in concert, have prevented him from participating in a substantially gainful occupation throughout the entirety of the appeal period (from September 29, 2009, to the present). As to sedentary employment, the Board notes that the Veteran's service-connected disabilities cause him to be unable to sit or stand for long periods of time, and no party to this case has alluded defined the term "sedentary employment" or alluded to any form of such which congruent with the Veteran's prior educational or occupational experiences. Withers v. Wilkie, 30 Vet. App. 139 (2018). The Board also notes that the July 2017 examiner indicated that the Veteran reported flareups that cause functional loss or impairment in that such flareups make it necessary for him to lie down and ice his back. Further, the examiner noted that the examination was not conducted during a flareup "but the Veteran had pain and limitation with 3 repetitions to the degree that supports if flared beyond typical daily pain as likely as not would result in functional loss." In addition, as to sedentary employment, the Board notes the Veteran's limited education, having left school after 9th grade, and single-occupation limited employment training and history which is not relevant to a sedentary occupation requiring analytical skills or completing administrative tasks. The Veteran does not have education or training in another occupation. The Board finds that the evidence is as at least in equipoise whether the Veteran would have been precluded from any work, including sedentary work, solely due to his service-connected disabilities. Therefore, resolving reasonable doubt in the favor of the Veteran, the Board finds that the evidence of record supports a finding that the functional impairment associated with the Veteran's service-connected disabilities is of such nature and severity as to preclude substantially gainful employment from September 29, 2009. Rice v. Shinseki, 22 Vet. App. 447 (2009); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.