Citation Nr: 21007374 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 95-09 808 DATE: February 9, 2021 ORDER A total disability rating based on individual unemployability (TDIU), from August 14, 1992, to March 11, 1997, is granted. FINDING OF FACT From August 14, 1992, to March 11, 1997, the Veteran’s service-connected low back disability was so severe as to preclude him from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for a TDIU, from August 14, 1992, to March 11, 1997, are met. 38 U.S.C. § 1155, 5107, 5110; 38 C.F.R. §§ 4.1-4.7, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1967 to November 1969, to include service in the Republic of Vietnam. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for a low back disability and a TDIU. In October 1997, the Veteran testified at hearing before a Decision Review Officer. In October 1999, the Veteran testified at a Board hearing before a Veterans Law Judge who is no longer employed by the Board. The Veteran was offered the opportunity for another hearing but waived his right in an August 2013 letter from his attorney. Therefore, the Board will proceed with adjudicating the appeal. In September 2008, the Board denied service connection for a low back disability and a TDIU. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court) which, in September 2009, on the basis of a Joint Motion for Remand (Joint Motion), vacated the denial and remanded the matter to the Board for further action. The Board remanded the appeal in June 2010, March 2012, November 2013, and August 2016. In August 2018, the Board granted service connection for chronic lumbar sprain with spondylosis, spondylolisthesis, and disc disease at L4-L5 and remanded the issue of a TDIU. In a May 2019 rating decision, the RO implemented the Board’s award of service connection for a low back disability, effective August 14, 1992, and granted a TDIU effective August 17, 1999, that is, the date at which the Veteran met the schedular criteria for a TDIU. In December 2019, the Veteran died. The Veteran’s surviving spouse, who is the appellant, has been substituted as the claimant. In December 2020, the Director of Compensation determined that the Veteran’s service-connected low back disability warranted an extraschedular TDIU effective March 12, 1997, that is, the date of a letter from a private physician. See Letter (March 12, 1997). Based on the Director of Compensation’s determination, in a December 2020 rating decision, the decision Review Officer (DRO) granted a TDIU, effective March 12, 1997. Although the Veteran was awarded a TDIU effective March 12, 1997, his TDIU claim was raised as part and parcel of his claim of service connection for a low back disability, which was received by VA on August 14, 1992. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, a TDIU, from August 14, 1992 to March 11, 1997, is currently on appeal. Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). TDIU 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 as 60 percent or more, and if there are two or more 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. 38 C.F.R. § 4.16(a). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. Prior to March 12, 1997, the Veteran’s service-connected disability was a low back disability, which was rated as 20 percent disabling. Where, as here, a claimant does not meet the aforementioned criteria, a total disability evaluation may still be assigned, but on an extraschedular basis. 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, the rating boards are required to submit to the Director of Compensation, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). Id. The Director of Compensation has evaluated whether an extraschedular TDIU was warranted prior August 17, 1999; the Director of Compensation granted a TDIU, effective March 12, 1997. As explained above, the question on appeal is whether a TDIU, from August 14, 1992 to March 11, 1997, is warranted. 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 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, 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 work place stress, get along with coworkers, and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In this case, the Veteran completed his highest level of education, a high school diploma, in 1967. See Service Personnel Records (1967). The Veteran’s occupational history consisted almost entirely of truck driving and physically demanding construction work. Prior to entering service, the Veteran worked on a construction crew, driving trucks, and building a highway. See Id.; VA psychiatric examination (November 1992). During service, the Veteran specialized as a carpenter; his military duties included driving heavy machinery and working on bridges, roads, and airports. See DD Form 214; DRO hearing (October 1997). Following the Veteran’s separation from service in 1969, he continued to perform manual labor, such as truck driving and working in factories and in highway construction. See VA Form 8940 (December 1997). The Veteran was last employed as a truck driver, from 1985 to 1986. Id. The Veteran also had experience farming; however, he quit in 1986 due to back pain. See VA examination report (November 1992). The Veteran’s employment history was physically demanding work, or required prolonged sitting, as one of his jobs was a truck driver. Throughout the pendency of his lengthy appeal, the Veteran consistently asserted that his back pain precluded him from maintaining employment, as he had trouble getting out of bed in the morning and difficulty standing. See Board hearing (October 1999); DRO hearing (October 1997). Treatment records show a well-documented history of back pain treated with pain medication and numerous steroid and facet injections and epidural blocks. See Letter from physician summarizing private treatment records 1992-1997 (May 8, 1997). These records show that the Veteran sought treatment for constant back pain, that made it difficult to stand for any length of time (see, e.g., PTR, June 30, 1992) or to stand from a squatting position (see, e.g., PTR, January 1992). The records also show that the Veteran suffered flare ups; he indicated that during flare-ups, he could hardly move. See, e.g., PTR (February 1996). Indeed, in a December 1992 letter, one of the Veteran’s physicians told another physician that the Veteran was ambulatory, but could not walk more than 10 minutes without pain. In a March 1997 letter, another physician stated that the Veteran’s spine disability “should be recoverable to some degree. [But] [w]hether or not he would be employable is another thing.” A Social Security Administration (SSA) disability evaluation report indicated that the Veteran might be able to sit for one hour at a time. See SSA Determination (February 14, 1994) (finding that the Veteran was disabled due to COPD, obesity, psychiatric disorder, post-concussive syndrome, and disabilities of back, neck, legs, and feet). On VA examination in November 1992, an examiner observed that spinal range of motion was limited approximately 25 percent in all directions and that the Veteran was able to lie and raise from the examination table without any real difficulty. The examiner did not observe muscle spasm or tenderness. Based on the aforementioned evidence, the Board finds that the Veteran’s service-connected back disability was so severe as to preclude him from performing the type of activities associated with his occupational experience. In this regard, the Veteran’s low back disability precluded him from prolonged standing and walking required to continue working in construction or farming, let alone the bending, squatting, lifting, and carrying associated with such work. The Veteran’s low back disability also impaired his ability to sit for more than one hour, which would have been required for him to continue working as a truckdriver. Due to the Veteran’s limited education and lack of vocational training, it was unlikely that he would had obtained less physically demanding work during the period under review, that is from August 14, 1992, to March 12, 1997. In reaching its decision, the Board finds that the high frequency of invasive spinal treatments, namely injections and epidurals, speaks to the severity of the Veteran’s symptoms, and by extension, the extent of his functional limitation. The current effective date of the Veteran’s TDIU, March 12, 1997, is predicated upon a letter from one physician to another, wherein the physician described his history with the patient. In other words, the March 1997 letter does not demonstrate the severity of the Veteran’s low back disability as of March 12, 1997, but rather provides a retrospective opinion regarding the severity of the Veteran’s back disability, from which a new physician can base treatment. For the reasons outlined above, from August 14, 1992, to March 12, 1997, the Veteran’s service-connected low back disability, was so severe as to preclude him from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. Accordingly, a TDIU, from August 14, 1992, to March 12, 1997, is warranted. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Castillo, 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.