Citation Nr: 21005775 Decision Date: 02/02/21 Archive Date: 02/02/21 DOCKET NO. 15-31 888 DATE: February 2, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis from September 23, 2008 to March 28, 2010 is granted. An effective date as of September 23, 2008 for the award of the grant of basic eligibility to Dependents’ Educational Assistance (DEA) under 38 U.S.C. Chapter 35 is granted. FINDINGS OF FACT 1. Resolving all reasonable doubt in favor of the appellant, from September 23, 2008 to March 28, 2010, the Veteran’s service-connected disabilities prevented him from securing and following any substantially gainful employment. 2. The evidence demonstrates that September 23, 2008 was the earliest date the criteria for basic eligibility to DEA were met. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU on an extraschedular basis from September 23, 2008 to March 28, 2010 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. The criteria for an effective date as of September 23, 2008 for the award of the grant of basic eligibility to DEA under 38 U.S.C. Chapter 35 have been met. 38 U.S.C. §§ 3501, 3510, 5103, 5103A, 5107, 5113; 38 C.F.R. §§ 3.340, 3.341, 3.400, 3.807(a), 4.3. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from January 1986 to May 1986 and in the U.S. Air Force from May 1987 to July 1993. He died in March 2014. The appellant is the Veteran’s surviving spouse. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted entitlement to a TDIU, effective January 13, 2012; and granted basic eligibility to DEA benefits from January 13, 2012. The Veteran appealed for earlier effective dates. Most recently, in July 2020, the Board, in pertinent part, granted entitlement to a TDIU, effective March 29, 2010; granted basic eligibility to DEA benefits from March 29, 2010; and remanded the issues of entitlement to a TDIU prior to March 29, 2010 on an extraschedular basis and entitlement to an effective date prior to March 29, 2010 for basic eligibility to DEA benefits for additional development. As the actions specified in the remand have been substantially completed, the matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). In an August 2020 rating decision, the RO effectuated the July 2020 Board decision granting entitlement to a TDIU, effective March 29, 2010; and granting basic eligibility to DEA benefits from March 29, 2010. Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159. Neither the appellant nor her representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). TDIU 1. Entitlement to a TDIU on an extraschedular basis from September 23, 2008 to March 28, 2010 The appellant asserts that the Veteran’s service-connected disabilities prevented him from securing and following any substantially gainful employment prior to March 29, 2010. As discussed below, the Board finds that resolving all reasonable doubt in favor of the appellant, a TDIU on an extraschedular basis is warranted. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. A substantially gainful occupation has been defined as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a “living wage.” Id. Marginal employment is defined as an amount of earned annual income that does not exceed the poverty threshold determined by the U.S. Census Bureau. Marginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). When jobs are not realistically within his physical and mental capabilities, a veteran is determined unable to engage in a substantially gainful occupation. Moore v. Derwinski, 1 Vet. App. 356 (1991). In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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, and that, if there are two or more such disabilities, there shall 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 purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). From September 23, 2008 to March 28, 2010, the Veteran did not meet the schedular requirements for a TDIU, as his combined evaluation was 60 percent (bronchitis as 10 percent disabling; degenerative disc disease and spondylosis of lumbar spine, status post laminectomy, L-5 as 20 percent disabling; cervical strain as 20 percent disabling; left lower extremity radiculopathy as 10 percent disabling; right lower extremity radiculopathy with atrophy as 10 percent disabling; painful surgical scar of lumbar spine as 10 percent disabling; and noncompensable evaluations for sinusitis; scar of back of neck, status post excision of nevus; laceration scar of left index finger; erectile dysfunction; and lumbar spine surgical scar). However, 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). Therefore, if a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), as here, an extraschedular rating is for consideration where a veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim was referred to VA's Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). At the outset, the Board notes that in the July 2020 Board remand, the Board referred the TDIU claim for extraschedular consideration for the period from September 23, 2008 to March 28, 2010. In November 2020, after receiving an advisory opinion from the Director of Compensation Service denying entitlement to a TDIU on an extraschedular basis prior to March 29, 2010, the RO denied entitlement to a TDIU under 38 C.F.R. § 4.16(b) prior to March 29, 2010. After a referral has been made and the Director of the Compensation Service has made a determination regarding entitlement to an extraschedular rating, the Board has jurisdiction to review that determination on a de novo basis. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Board notes that entitlement to a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), and an extraschedular rating under 38 C.F.R. § 3.321(b)(1), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the veteran’s disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. By contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 06-1996. In this regard, the Board notes that, for a veteran to prevail on a claim for TDIU on an extraschedular basis, it is necessary that the record reflect some factor which places the case in a different category than other veterans with an equal rating of disability. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The pertinent question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Id. This is so because a disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. Id. The Board notes that the ultimate question of whether a veteran is capable of substantially gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Thus, the VA examiners’ conclusions are not dispositive. However, the observations of the examiners regarding functional impairment due to the service-connected disability go to the question of physical or mental limitations that may impact his ability to obtain and maintain employment. A careful review of the record shows that the Veteran worked at a VA Medical Center as a pharmacy technician from June 1999 to April 2008. He reported that his service-connected lumbar spine disability prevented him from securing and following any substantially gainful occupation. He remarked that he was extremely limited in what he could do physically. Employment records show that the Veteran was removed from his employment, because he was found to be physically unable to perform the duties of his position. He had reportedly completed two years of college. Aside from his experience as a pharmacy technician, the Veteran was also a trained licensed practical nurse. See April 2008 VA notification letter, September 2008 VA Form 21-8940, and December 2008 VA Form 21-4192. The Board finds that the following evidence is the most probative in support of the Veteran’s claim for a TDIU. In particular, the Board places significant weight upon: (1) findings documented in a July 2006 private treatment record that the Veteran was diagnosed with lumbosacral herniated disc disease and sciatica on the right, and that his private physician recommended light duty and no lifting, stooping, bending, twisting, pushing, pulling or climbing; (2) a January 2008 VA letter informing the Veteran that his request for accommodation in connection with his disability was denied, because the Reasonable Accommodation Committee found that due to the long-term prognosis of his non-job related illness, an accomodation would require removal of an essential function as well as lowering of performance or production standard; (3) a Functional Statement for Pharmacy Technician received in April 2008 describing the physical demands of the position as requiring regular and recurring physical exertions, involving standing for prolonged periods of time, lifting or carrying of pharmaceutical supplies weighing up to 50 pounds and bending or stooping; (4) an April 2008 VA letter informing the Veteran that, effective April 25, 2008, a decision had been made to remove him from employment at the VA, because he was physically unable to perform the duties of his position as a Pharmacy Technician; and the restrictions placed on him by his heath care provider (no bending, no lifting over five pounds, no squatting or stooping for more than one-half hour per day, no standing for more than four hours per day, walking as tolerated, no pushing or pulling, and requiring resting intervals every two hours), which were permanent due to his health care condition, prevented him from performing the requirements of his position; (5) a further explanation in the April 2008 VA letter that the Licensed Practical Nurse position requires long periods of standing and/or walking, positioning and lifting of patients that require considerable effort, and working in awkward positions; and that the restrictions placed on the Veteran by his physician, along with the requirements of the positions for which the Veteran was qualified, made both the Pharmacy Technician and Licensed Practical Nurse positions unsuitable for the Veteran; (6) findings by a VA physician in a May 2008 letter that the Veteran was diagnosed with intervertebral disc protrusion with nerve root displacement; that he would never recover from this condition; and that he would always require pain mediation and have limitations on his physical disabilities; (7) reports made in a June 2008 Applicant’s Statement of Disability in which the Veteran described being on light duty since 2004, having a modified work schedule, taking sick leave regularly due to back pain, and having constant low back pain even with taking narcotics to decrease pain level; describing how he had been denied a request for work accommodations, which included requesting to remain on light duty or to be assigned to phone duty; and indicating that he had been terminated in April 2008; (8) statements made by the Veteran’s former supervisor in the June 2008 Applicant’s Statement of Disability that the Veteran was in a light duty assignment, and he became unable to perform the functions on light duty; (9) findings made by a physician in a July 2009 Internal Medicine Report, prepared in connection with the Veteran’s Social Security Administration disability claim, that the Veteran had chronic low back pain, which was exacerbated with any type of lifting and carrying; that he had a significant amount of back spasms, which was partially relieved by medication; and that he could stand for approximately two hours at a time, could walk on level ground approximately 500 yards, and could sit for approximately two hours; (10) a conclusion by the July 2009 physician that the Veteran had a significant amount of functional limitation secondary to the deformity in his lumbar spine; (11) reports made by the Veteran at a July 2009 VA examination that he had constant, daily back pain and daily muscle spasms; that he had balance issues, because his legs fell asleep; that he had numbness in his legs and in the bottom of his feet; that he had weakness in his quadriceps bilaterally and the muscles in the back of his calves; that he experienced neck stiffness every morning and neck pain two to three times per week, which radiated into the top of both shoulders and scapula; and that at times, he got a twitch of his hands; and (12) an opinion by the July 2009 VA examiner that the Veteran’s service-connected degenerative arthritis of the lumbar spine and service-connected degenerative arthritis of the cervical spine individually rendered him unemployable for heavy duty and sedentary employment. The Board recognizes that the November 2020 Advisory Opinion denied entitlement to a TDIU on an extraschedular basis prior to March 29, 2010. That determination was based on the findings that generally, less strenuous jobs exist, in particular due to the reliance on computers; and that many jobs require only light activity for which a person with a high school education would be capable of performing. The Director of Compensation Service noted that based on the Veteran’s education level and previous work experience, he would be able to learn new skills. Also, the Director suggested that as long as the Veteran was permitted to alternate between sedentary and non-sedentary positions, he should be able to handle less physically demanding jobs. Further, the Director determined that there were a “wide of spectrum of jobs” where the Veteran could use adaptive equipment, such as a sit/stand desk, to mitigate his limitations. Overall, the Director concluded that the evidence failed to support the contention that any of the Veteran’s service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment prior to March 29, 2010. Nevertheless, taking into consideration the totality of the evidence, the Board finds that the evidence is at least in equipoise that the Veteran’s service-connected disabilities preclude him from securing and following any substantially gainful employment. On that basis, the Board finds that the competent and credible lay reports of the Veteran, the findings of significant functional limitations due to his service-connected lumbar spine disability by VA, private and independent physicians, and most importantly, the findings by his former employer that he could no longer perform the essential functions of his positions, neither as a Pharmacy Technician, nor his other qualified position as a Licensed Practical Nurse, support that the Veteran’s service-connected disabilities would have significantly impacted his ability to perform in an occupational environment prior to March 29, 2010. The Board reiterates the conclusion in the November 2020 Advisory Opinion that all forms of employment were not significantly impacted by the Veteran’s service-connected disabilities, and that his limitations could be mitigated. However, the Board finds that the Veteran’s functional limitations and restrictions have already been found by his former employer to render him unsuitable to continue working, despite his qualifications and work history. Furthermore, the Veteran’s former employer also found that work accommodations were not available, so he was terminated. Accordingly, the Board finds that resolving all reasonable doubt in favor of the appellant, from September 23, 2008 to March 28, 2010, a TDIU is granted on an extraschedular basis under 38 C.F.R. § 4.16(b). 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DEA 2. Entitlement to an effective date earlier than March 29, 2010 for the award of the grant of basic eligibility to DEA under 38 U.S.C. Chapter 35 The appellant is seeking an effective date prior to March 29, 2010 for basic eligibility to DEA under 38 U.S.C. Chapter 35. Except as provided in subsections (b) and (c), effective dates relating to awards under Chapter 35 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation. 38 U.S.C. § 5113. Subsection (b) provides that when determining the effective date of an award under Chapter 35 for an individual described in paragraph (b)(2) of 38 U.S.C. § 5113, based on an original claim, VA may consider the individual's application as having been filed on the eligibility date of the individual if that eligibility date is more than one year before the date of the initial rating decision. For these purposes, "eligibility date" means the date on which the individual became an eligible person as defined by 38 U.S.C. § 5113(a)(1), and "initial rating decision" means a decision by VA that establishes the veteran's total disability as permanent in nature. 38 U.S.C. § 5113(b)(3). In the case of a veteran who has died, the conditions for basic eligibility for DEA include: (1) the veteran's discharge from service under conditions other than dishonorable; and (2) a permanent total service-connected disability was in existence at the date of the veteran’s death; or, the veteran died as a result of a service-connected disability. 38 C.F.R. § 3.807(a). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a). A permanent total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340(b). Permanent total disability ratings may not be granted as a result of any incapacity from acute infectious disease, accident, or injury, unless there is present one of the recognized combinations or permanent loss of use of extremities or sight, or the person is in the strict sense permanently helpless or bedridden, or when it is reasonably certain that a subsidence of the acute or temporary symptoms will be followed by irreducible totality of disability by way of residuals. The age of the disabled person may be considered in determining permanence. Id. The term "total disability permanent in nature" for the purpose of DEA benefits means any disability rated total for the purposes of disability compensation which is based upon an impairment reasonably certain to continue throughout the life of the disabled person. 38 U.S.C. § 3501(a)(8). In an April 2012 rating decision, the RO awarded the Veteran basic eligibility to DEA benefits, effective January 13, 2012, based upon the determination that he had a permanent and total service-connected disability by virtue of his TDIU evaluation. Subsequently, in an August 2020 rating decision, the RO effectuated the grant of an effective date as of March 29, 2010 for basic eligibility to DEA benefits. (Continued on the next page)   Since the effective date for DEA benefits is directly related to a finding that a permanent total service-connected disability was in existence at the date of the veteran’s death, an effective date of September 23, 2008 for Chapter 35 benefits is warranted as this is now, as of this decision, the effective date for the Veteran’s TDIU evaluation. In summary, resolving all reasonable doubt in favor of the appellant, her claim for an effective date as of September 23, 2008, but no earlier, for the award of the grant of basic eligibility to DEA under 38 U.S.C. Chapter 35 is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Journet Shaw, 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.