Citation Nr: 21077458 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 19-00 509 DATE: December 29, 2021 REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 15, 2017 is remanded. Entitlement to a disability rating in excess of 10 percent for spinal stenosis and degenerative disc disease from June 20, 2007, and in excess of 40 percent from August 1, 2017, excluding the convalescence period from May 9, 2017 to July 31, 2017, is remanded. Entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy associated with spinal stenosis from June 20, 2007, in excess of 20 percent from October 27, 2016, and in excess of 40 percent from March 15, 2017 is remanded. REASONS FOR REMAND The Veteran served on active duty from April 1978 to July 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from a November 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Following receipt of the November 2016 rating decision, which granted service-connection for the Veteran's back and left lower extremity disabilities and assigned 10 percent disability ratings, the Veteran filed a timely April 2017 Notice of Disagreement (NOD) as to these ratings, and indicated he was unable to work. Rather than issuing a Statement of the Case (SOC), the RO issued a second rating decision, to which the Veteran also filed a timely NOD. As such, these claims stem from the appeal of the November 2016 rating decision and the filings received by VA on May 10, 2017 did not evince a new claim for increased ratings, but support of the Veteran's April 2017 NOD. Accordingly, the Veteran's claim for a TDIU, which arrived at the Board characterized as a one for an earlier effective date, has been recharacterized as one for basic entitlement for the award, as the benefit has yet to be granted in full for the period on appeal, beginning May 14, 2007. Rice v. Shinseki, 22 Vet. App. 447 (2009). Lastly, as explained below, the Board has assumed jurisdiction over the Veteran's claims for increased ratings for his back disability and left lower extremity radiculopathy for the purpose of issuing a SOC. See Manlincon v. West, 12 Vet. App. 238 (1999). In August 2021, the Veteran presented testimony before at a hearing before the undersigned Veterans Law Judge. A transcript is on record. 1. Entitlement to a TDIU prior to March 15, 2017 is remanded. The Veteran's claim for a TDIU prior to March 15, 2017 must be remanded for referral to the Director of Compensation Services for extraschedular consideration. The Veteran has only held employment as a truck driver since his separation from service. A May 2017 VA Form 21-8940 indicates the Veteran last worked in March 2001. Prior to March 15, 2017, the Veteran was service-connected and rated for spinal stenosis as 10 percent disabling from June 20, 2007 and left lower extremity radiculopathy as 10 percent disabling from June 20, 2007 and 20 percent disabling from October 27, 2016. The Veteran was in receipt of a combined rating of 20 percent from June 20, 2007 and 30 percent from October 27, 2016. Therefore, prior to March 15, 2017, the Veteran did not meet the schedular criteria for a TDIU. However, a TDIU may be still be awarded, where a veteran's schedular rating is less than total, if evidence is received to show that he is unable to secure or follow a substantially gainful occupation due to service-connected disability. 38 C.F.R. § 4.16. Here, the Board finds there is evidence the Veteran's back disability may have precluded him from substantially gainful employment prior to March 15, 2017. For example, medical records from November 2007 show a medical provider qualified the Veteran's back disability as severe and that the Veteran reported his pain to be disabling. He requested a prescription for a cane. At a November 2007 VA examination, the Veteran reported stiffness and constant pain in his lower back rated as nine on a ten-point scale (9/10). The examiner noted the Veteran's back was aggravated by physical activity and that he required medication to remain functional. The examiner also noted in the last year, the Veteran had received a prescription for fourteen days of bedrest due to his back disability. In May 2011, the Veteran submitted a statement from his previous employer. The employer reported the Veteran missed work several times due to issues with this back and not being able to move right or come to work. At his August 2011 hearing regarding service connection for his back disability, the Veteran reported the need for a friend to help him complete certain hauling jobs. A June 2011 statement from the friend supports the Veteran's testimony that he required assistance to complete some of his hauling jobs. At a VA examination in October 2016, the Veteran reported occasional flares of severe pain that made getting out of bed difficulty for a few days. The Veteran indicated his functional loss included difficulty with lifting, prolong walking or standing, and sitting on low couches or in small chairs. The examiner found the Veteran's back pain led to poor tolerance for general physical work, especially heavy physical work involving lifting or twisting motions, and poor tolerance for extended walking or driving. At his August 2021 Board hearing, the Veteran described an attempt to return to school that was unsuccessful because of his inability to sit still due to his back pain. The Board finds the foregoing evidence indication that the Veteran's back disability may have precluded him from substantially gainful employment prior to March 15, 2017 such that referral for extraschedular consideration is warranted. 2. Entitlement to a disability rating in excess of 10 percent for spinal stenosis and degenerative disc disease from June 20, 2007, and in excess of 40 percent from August 1, 2017, excluding the convalescence period from May 9, 2017 to July 31, 2017, is remanded. 3. Entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy associated with spinal stenosis from June 20, 2007, in excess of 20 percent from October 27, 2016, and in excess of 40 percent from March 15, 2017 is remanded. The RO's November 2016 rating decision granted service connection for the Veteran's back and left lower extremity disabilities and assigned 10 percent ratings. In April 2017, the Veteran submitted a NOD signaling disagreement with his 10 percent ratings along and asserting his back disability rendered him unemployable. A SOC has not been issued for these claims. See Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, a SOC must be sent to the Veteran on these issues. Id. The matters are REMANDED for the following actions: 1. Refer the Veteran's TDIU claim to the Director of Compensation Service or designee for consideration of whether an extraschedular rating is warranted prior to March 15, 2017. 2. Issue a Statement of the Case (SOC) on the following issues: (i) entitlement to a disability rating in excess of 10 percent for spinal stenosis and degenerative disc disease from June 20, 2007, and in excess of 40 percent from August 1, 2017, excluding the convalescence period from May 9, 2017 to July 31, 2017; and (ii) entitlement to a disability rating in excess of 10 percent for left lower extremity radiculopathy associated with spinal stenosis from June 20, 2007, in excess of 20 percent from October 27, 2016, and in excess of 40 percent from March 15, 2017. Only if the Veteran perfects an appeal should these claims be certified to the Board. L. CHU Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P.A. Infante, 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.