Citation Nr: 21074864 Decision Date: 12/16/21 Archive Date: 12/16/21 DOCKET NO. 17-20 915 DATE: December 16, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 17, 2016, is denied. FINDING OF FACT Prior to March 17, 2016, the Veteran was not prevented from securing and following substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to March 17, 2016, have not been met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United Stated Army from November 1965 to November 1967, including combat service in the Republic of Vietnam, and his decorations include the Purple Heart Medal and the Combat Infantryman Badge. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously remanded by the Board in January 2019, June 2020, March 2021 and July 2021 decisions for further development. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 17, 2016 The Veteran filed his TDIU claim on March 17, 2016. The Veteran reported that he was unable to work due to his back problems and subsequently retired. The Veteran was granted entitlement to TDIU in a March 2017 rating decision, with an effective date of March 17, 2016, the date on which Veteran also met the disability percentage requirements for unemployability consideration. TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more 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. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident; (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the 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. 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 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 reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). If a Veteran's service-connected disabilities fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), referral to the Director, Compensation Service for extraschedular consideration of a TDIU is warranted if the veteran nonetheless is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director's decision before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). The Board reviews de novo the Director's decision denying TDIU on an extraschedular basis. See Wages v. McDonald, 27 Vet. App. at 238-39. In March 2021, the Board held that prior to March 17, 2016, it was unclear, at best, whether the Veteran was unable to secure or follow substantially gainful employment due to his service-connected disabilities. The record shows that Veteran was employed as a letter carrier from April 23, 1988 to July 31, 2009. The Veteran reported that he stopped working on May 21, 2009, when he had back surgery and decided to retire because he was never medically cleared for work. Veteran's March 2016 VA Form 21-9840 also noted that Veteran completed 12 years of grade school. Social Security Administration records indicate Veteran is in receipt of retirement benefits from August 2009. During a VA back examination in April 2014, the examiner, an orthopedic resident, acknowledged that the Veteran was retired but stated that the Veteran retired because back and leg pain was so problematic. During another VA back examination in June 2014, the examiner, an orthopedic resident, again acknowledged that the Veteran was retired, but stated that the Veteran's thoracolumbar spine (back) condition resulted in the Veteran being unable to perform his duties as a mailman. In support of the claim, the Veteran also provided a May 2009 private medical opinion. In that opinion, a physician opined that the Veteran was unable to work due to a medical condition but would be able to return to work in a month. The examiner did not provide any rationale for the opinion. The Board subsequently referred the matter to the Director, Compensation Service for consideration of the issue of entitlement to TDIU prior to March 17, 2016. In a May 2021 advisory opinion regarding extraschedular consideration under 38 C.F.R. § 4.16 (b), the Director determined that the overall evidence failed to support the contention that service-connected disabilities or a combination of the effects of those abilities prevented Veteran from employment prior to March 17, 2016. See May 2021 VA Memo. The Director noted that prior to March 17, 2016, the Veteran was service connected for degenerative joint disease to include spinal stenosis (foraminal) at L4/5 and L5/S1 lumbar spine with a 20 percent evaluation from August 21, 1980, left lower extremity radiculopathy with a 10 percent evaluation from March 19, 2013, tinnitus with a 10 percent evaluation from March 19, 2013, laceration scar to the right hip with a 0 percent evaluation form August 21, 1980, right ear hearing loss with a 0 percent evaluation from March 19, 2013, and a surgical scar to the lumbar spine with a 0 percent evaluation from March 19, 2013. The Veteran's combined disability evaluation prior to that date was 50 percent. The Director opined that the Veteran's examination and treatment history did not indicate there were significant impairments to functioning due to his hearing loss, tinnitus, or service-connected scars. An examination report from June 2014 reported a diagnosis of degenerative arthritis of the spine with stenosis and radiculopathy; there were reduced ranges of motion for the spine with painful motion for the back. Treatment records prior to March 2016 reported the Veteran walked several times per week for exercise and engaging in weight training. The records also reported the Veteran continued to perform recreational and home tasks, including shoveling snow, hunting, fishing, and grocery shopping. The Director held that while the Veteran had limitations caused by his service-connected lumbar spine conditions during the time period in question, the cumulative evidence did not support the service-connected conditions, alone or in conjunction, would have precluded all forms of substantially gainful activity, including in a sedentary or semi-sedentary environment. The Veteran may have been unable to perform some forms of physical labor, but the records do not show the Veteran would have been considered to be totally occupational impaired prior to March 2016. See Id. In July 2021, the Board acknowledged that, while not being bound by the Director of Compensation's opinion, see Wages, it was unclear whether the Veteran was unemployable prior to March 17, 2016. The issue was again remanded to obtain an opinion on whether Veteran's service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment prior to March 17, 2016. Subsequently, in VA medical opinions from September 2021, the examiner opined that Veteran's service-connected back disability and associated bilateral lower extremity radiculopathy would have a significant impact on his ability to perform occupational tasks prior to March 17, 2016, taking into consideration Veteran's level of education, special training and previous work experience. The VA examiner's rationale for the opinion was Veteran reported in his 2014 C&P exam that pain was worse with standing, sitting, or lying for prolonged periods, and indicating these symptoms were present prior to 2016. These symptoms would disrupt any job requiring standing for more than 10 minutes at a time or sitting for more than 15-20 minutes. Additionally, the symptoms cause nighttime awakenings about 6-8 times a night, resulting in fatigue and negative impact on concentration, stamina and productivity. See September 2021 C&P Exams. After a thorough review of the record and consideration of all examinations, opinions and lay statements, the Board, as a finder of fact, agrees with the Director and concludes that entitlement to an effective date prior to March 17, 2016, for the award of TDIU, must be denied. Wages. With a combined evaluation for compensation of 50 percent from March 19, 2013, the Veteran did not meet the minimum schedular rating requirement for TDIU prior to March 17, 2016. The preponderance of the evidence does not show that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities before March 17, 2016, such that entitlement to TDIU on an extraschedular basis would be appropriate. VA examinations and treatment records do not indicate impairment sufficiently significant to result in unemployability during this period prior to March 17, 2016. Instead, the impact of his service-connected disabilities his back, left leg, tinnitus, right ear hearing loss and scars did not render the Veteran unable to both get and keep a job consistent with his education, training and work experience. In short, the Veteran did not meet the minimum schedular rating requirements for TDIU prior to March 17, 2016, nor was he unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to that date. As such, entitlement for TDIU on an extraschedular basis is not warranted. In reaching this conclusion, the Board agrees with the Veteran that it was the aggregate impact of his service-connected disabilities that rendered him unable to work. Indeed, as noted by the Director, the Veteran walked several times per week for exercise and engaging in weight training. The records also show the Veteran continued to perform recreational and home tasks, including shoveling snow, hunting, fishing, and grocery shopping. (Continued on the next page) In light of the foregoing, earlier effective date for TDIU is not warranted and the appeal is denied. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.