Citation Nr: 21077574 Decision Date: 12/30/21 Archive Date: 12/30/21 DOCKET NO. 15-06 622 DATE: December 30, 2021 ORDER A total disability based upon individual unemployability (TDIU) on an extraschedular basis, for the period from April 19, 2012 (but no earlier), to April 14, 2015, is granted. FINDING OF FACT Resolving all doubt in favor of the Veteran, as of April 19, 2012, his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history. CONCLUSION OF LAW As of April 19, 2012, but no earlier, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1982 to November 1985, and from September 1986 to March 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied increased ratings for low back and neck disabilities. The issue was previously before the Board in October 2018, wherein it was found that entitlement to TDIU was raised by the record based on the Veteran's report that his lumbar and cervical spine disabilities interfered with his ability to work. As the Veteran's combined schedular rating was 100 percent, beginning February 11, 2016, a TDIU before said date was inferred and remanded. Rice v. Shinseki, 22 Vet. App. 447 (2009). In January 2021, the Board again remanded the issue and mandated that the RO request that the Veteran complete and submit a VA Form 21-8940. If the Veteran provided the completed form, the RO was then asked to develop and adjudicate the claim for TDIU, including referral to the Director of Compensation Service for extraschedular consideration, if found warranted. In January 2021, the RO provided correspondence to the Veteran asking him to complete, sign, and return the enclosed VA Form 21-8940. He was also notified that he had 30 days to provide the requested information. The Board finds that there has been substantial compliance with the remand directive. Stegall v. West, 11 Vet. App. 268 (1998). In June 2021, the Board granted entitlement to a TDIU due to service-connected disabilities for a portion of the rating period on appeal: April 14, 2015, onward. The Board remanded the issue of entitlement to a TDIU for the period prior to April 14, 2015, with instructions to refer the claim to the Director of Compensation Service for consideration of whether an extraschedular TDIU is warranted for the period prior to April 14, 2015. 1. A TDIU on an extraschedular basis, for the period from April 19, 2012 (but no earlier), to April 14, 2015, is granted. The Veteran has already established entitlement to a TDIU effective from April 14, 2015. The Veteran contends that he was unable to maintain substantially gainful employment due to his service-connected disabilities prior to April 14, 2015. As explained by the October 2018 Board remand, his claim for a TDIU is part and parcel of his claims for higher ratings for his service-connected lumbar and cervical spine disabilities, which stem from claims filed April 19, 2012. See Rice v. Shinseki, 22 Vet. App. 447 (2009). VA will grant TDIU when the evidence shows that the Veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of identifying one 60 percent rated disability or one 40 percent rated disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word "substantially" suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The central inquiry in a claim for TDIU is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In terms of the Veteran's current assignments of disability ratings applied to / effective for various portions of his rating history, the Veteran's service-connected disability ratings in effect at the time of his filing of the claim in April 2012 were: (1) facet arthritis and degenerative disc disease, thoracolumbar, rated 20 percent disabling; (2) cervical spine strain with degenerative changes, C5-C6, C6-C7, with intervertebral disc syndrome, rated 20 percent disabling; (3) bilateral pes planus rated 10 percent disabling; (4) tinnitus rated 10 percent disabling; (5) hearing loss, right ear, rated 0 percent disabling; (6) hemorrhoids rated 0 percent disabling; and (7) scar, low back, rated 0 percent disabling. The combined disability rating was 50 percent at that time (and effective from December 2006), and this rating combination essentially remained throughout the rating period for consideration with the exception of a period of a temporary 100 percent rating in early 2015 and a short period featuring a combined 40 percent rating effective from March 31, 2015 and a 60 percent rating effective from April 1, 2015, prior to the Veteran's TDIU coming into effect 13 days later on April 14, 2015 (as documented in the recent August 2021 Codesheet history). See 38 C.F.R. § 4.25, Table 1. The Veteran met the schedular criteria for TDIU from the date of other compensation awards and his TDIU award effective April 14, 2015. The matter of entitlement to a TDIU must now be considered throughout the appeal period from April 19, 2012. Notwithstanding the above-listed schedular criteria, a veteran may be awarded a TDIU on an extraschedular basis if he is nonetheless unemployable on account of his service-connected disabilities. The Board's June 2021 decision granted TDIU on a schedular basis for the period from April 14, 2015, and discussed the most pertinent evidence regarding TDIU entitlement in this case; that evidence features information pertinent to the period prior to April 14, 2015. Although the Veteran did not provide a VA Form 8940, the record contains evidence that informs adjudication of this claim. Specifically, the Veteran Readiness and Employment (VR&E) (formerly known as Vocational Rehabilitation and Employment) records. In the Veteran's Rehabilitation Needs Inventory (RNI), dated in October 2010, he attributed his lack of employment to his service-connected back, neck, and tinnitus. The Veteran reported having had a Bachelor of Science in Information Technology from National University and full employment history from May 2003 to February 2009. He reported that he went on FMLA in 2009 and was laid off when his leave ran out. Furthermore, he reported the inability to do any heavy lifting, constant bending, and prolonged standing or walking. VR&E records dated in March 2012 described the Veteran as "seriously disabled." Following a comprehensive evaluation, VR&E determined that he was not fit for employment of any kind as of December 14, 2010. The June 2021 Board decision found that the Veteran's service-connected disabilities, in the aggregate, coupled with his educational/training background and employment history, likely precluded him from securing and following any substantially gainful employment, physical or otherwise, from at least as early as April 14, 2015 (the date upon which the schedular requirements for TDIU were satisfied). The Board's June 2021 Board decision found that the entitlement to a TDIU could not be attributed to a single service-connected disability, and the Veteran has not asserted to the contrary. Bradley v. Peake, 22 Vet. App. 280 (2009). The Board's June 2021 decision noted that prior to April 14, 2015, the Veteran does not meet the schedular requirements for a TDIU, and the Board may not award an extraschedular TDIU in the first instance. "Accordingly, this matter is being remanded for referral to the Director of the Compensation Service for consideration of whether an extraschedular TDIU is warranted." The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Pursuant to the June 2021 Board remand, in August 2021 the RO referred the Veteran's TDIU claim to the Director, VA Compensation Service, for extraschedular consideration with a recommendation to deny TDIU on an extraschedular basis prior to April 14, 2015. In a September 2021 decision, the Director denied entitlement to TDIU on an extraschedular basis. The ultimate responsibility for a TDIU determination is a factual rather than a medical question and is an adjudicative determination made by the Board or the AOJ. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Affording the Veteran the benefit of the doubt, the Board finds that the Veteran's service-connected disabilities, coupled with his educational/training background and employment history, likely precluded him from securing and following any substantially gainful employment for the period from April 19, 2012. The September 2021 advisory opinion from the Director conceded that the Veteran's service-connected conditions caused functional limitations, but concluded that the preponderance of the evidence did not show that the Veteran was unable to obtain or maintain gainful employment due to his service-connected conditions. Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233 (2015). 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. 38 C.F.R. § 4.16(b). The Board finds that a balance of the evidence reasonably reflects that the Veteran has been unemployable from April 19, 2012, the date of the claim for increased disability compensation on appeal. The VA VR&E documentation of record includes an October 2010 assessment that notes the Veteran's service-connected disabilities and finds that the Veteran was "Not physically able to perform" potential jobs considered at that time. A December 2010 determination found that the Veteran "need[ed] continued medical treatment and pain management therapy, as [he was] unable to tolerate light work and concentrate effectively in a rigorous course of studies to prepare for a new career." A December 2011 assessment explains that the Veteran's service-connected disabilities caused him "to be in a lot of pain and [he is] not able to attend activities out of the home other than medical appointments." The assessment notes that the Veteran's pain management requires "Morphine shots 3/day, which significantly limits concentration + alertness." This follows a November 2011 report that noted that the Veteran was in "excruciating pain" due to disc damage, and that a "nerve block" had failed to provide relief. A March 2012 closure report shows that the Veteran "continues to not be vocationally feasible" due to "his physical condition" rendering him "unable to engage in return to work activities." The closure report confirms that "the veteran was determined not feasible for employment of any kind on 12/14/10, due to the severity of his disabilities." As a lay person, the Veteran is competent to testify to observable symptoms, such as experiencing problems with pain, mobility, and concentration associated with his service-connected disabilities. See Washington v. Nicholson, 21 Vet. App. 191 (2007). The Board finds the Veteran's statements that the pain and functional impairment due to his service-connected disabilities affected his ability to perform his job and eventually prevented him from working to be credible and consistent with other evidence of record. The evidence reasonably reflects that the Veteran has been precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities, since at least 2010. Based on a review of the foregoing evidence, the Board concludes that the Veteran is entitled to a TDIU as of the date of his claim for the benefit filed on April 19, 2012. In this regard, the record reflects that his service-connected disabilities hindered his ability to function in a work setting and, following the loss of his job, prohibited him from securing and following a substantially gainful occupation consistent with his education and work history. Thus, resolving reasonable doubt in the Veteran's favor, the Board finds that the requirements for a TDIU are met as of April 19, 2012. The Board finds that the entitlement to a TDIU cannot be attributed to a single service-connected disability based upon the evidence of record, and the Veteran has not contended otherwise. Bradley v. Peake, 22 Vet. App. 280 (2009). The Court and VA's General Counsel have interpreted the laws and regulations pertaining to the effective date for an increase of compensation as providing that, if the increase occurred within one-year prior to the claim, the increase is effective as of the date the increase was factually ascertainable. 38 U.S.C. § 5110(b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400(o); VAOPGCPREC 12-98 (1998). In this case, the Board is awarding a TDIU rating for the Veteran's service-connected disabilities from at least as early as the April 19, 2012, date of the claim on appeal. The Board has now considered whether any worsening of the impairment within one-year prior to the claim warranted this increase in compensation. Although the Board notes that there is evidence suggesting some manner of worsening of the Veteran's impairments during the year prior to the April 2012 claim (such as the March 2012 VR&E report remarking that the Veteran's "physical condition has worsened"), the above-discussed evidence relied upon to award entitlement to TDIU in this decision shows that the Veteran has been precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities, since at least 2010. In other words, while the Veteran's service-connected impairments have clearly worsened at various times and in various manners throughout his history, the pertinent increase that led to the Veteran meeting the TDIU criteria occurred no later than 2010 and not within a year preceding the April 2012 claim on appeal. Accordingly, the Board finds no factually ascertainable date of onset of the increased impairment meeting the criteria for TDIU during the one-year period prior to the claim dated April 19, 2012, to serve as a basis for awarding a TDIU effective from prior to April 19, 2012. In summary, the Board finds that an award of TDIU is warranted on an extraschedular basis for the entire period from the April 19, 2012, date of the Veteran's claim (but no earlier), to the April 14, 2015, effective date of the existing award of TDIU. To this extent, the appeal is granted. M. C. GRAHAM Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barone, 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.