Citation Nr: 21007609 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 16-37 590 DATE: February 10, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT Taken in the light most favorable to the Veteran, the evidence shows that his service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW Beginning February 13, 2008, the criteria for entitlement to TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1979 to September 1982. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). Most recently, this matter was last before the Board in November 2018. At that time, the Board remanded the Veteran’s claim for TDIU for extraschedular consideration by the Director of Compensation Service pursuant to 38 C.F.R. § 4.16(b). In January 2020, the Director issued an advisory opinion determining that entitlement to extraschedular TDIU was not warranted. The RO echoed this reasoning in a February 2020 supplemental statement of the case. The matter now returns to the Board. Extraschedular TDIU Generally, the Veteran asserts that he is entitled to TDIU benefits during the period on appeal (i.e., the period from February 2008) because his service-connected neck, back, and left ankle conditions have prevented him from obtaining or maintaining substantially gainful employment since at least 1995, when he last worked full-time. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Although the Board must fully consider the “effect of combinations of disability” in its determination, “neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, the regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. Where separate medical opinions address the impact on employability resulting from independent disabilities, the Board is authorized to assess the aggregate effect of all disabilities. Id. TDIU 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 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). Disabilities of one or both upper extremities or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16(a). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Since February 13, 2008, the Veteran has been service-connected for residuals of a back injury with radiculopathy (40 percent disabling), as well as residuals of a left ankle injury (10 percent disabling). Additionally, he was granted entitlement to service connection for cervical disc disease from June 1, 2010 (10 percent disabling). The Veteran thus has a 50 percent combined disability rating from February 13, 2008. As such, the Veteran has not satisfied the schedular criteria for TDIU at any point during the period on appeal. The Board does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, VA is required to submit the case to the Director, Compensation Service, for an extraschedular opinion. In this case, however, the Director found that extraschedular TDIU was not warranted in a January 2020 advisory opinion. The Board may thus consider whether extraschedular TDIU is warranted. First, the Board will review the relevant evidence. The Veteran has submitted numerous applications for increased compensation based on unemployability. Generally, he asserts that he last worked full-time as a welder for Jenning’s Welding & Machine in 1995. In various signed affidavits, the Veteran has reported that after leaving this job, he performed work on the side doing tree trimming and removal for his neighbors, but that this work was only part-time and not profitable. As he and his representative have stated, he did not have a formal business set up, so these earnings are not reflected on Social Security Administration (SSA) earning statements. Due to his service-connected disabilities, he asserts that he eventually had to hire someone else to do the work for him while he supervised them before stopping his side project of tree trimming and removal altogether. For instance, his neck and back pain are aggravated by physical activity and prevent him from standing for more than about 15 minutes at a time. He also reported that his left ankle is unstable and wobbles underneath him, which affects his balance. Additionally, he contends that his disabilities prevent him from getting restful sleep at night and that he struggles to bathe, dress himself, cook, and clean because of his service-connected disabilities. SSA earning statements submitted in March 2015 reflect that the Veteran’s earnings were $260.50 in 1996 and that he has had no earnings, marginal or otherwise, since that date. Various evidence of record reflects that the Veteran has a ninth-grade education but did not complete high school. Although SSA records state that he has a high school education, he has submitted an affidavit indicating that this is a mistake because he dropped out of high school to help his family. The Veteran has consistently asserted that his service-connected disabilities impair his ability to secure and follow substantially gainful employment. For instance, he contends that neck and back conditions prevent him from lifting up to 10 pounds, and that his back, neck, and left ankle conditions cause pain that impairs his concentration, which prevents him from being a reliable and productive employee. Additionally, he claims that his service-connected back and neck conditions prevent him from walking, sitting, or standing such that he cannot even perform sedentary work. Turning to the medical evidence, the Veteran’s post-service treatment records consistently reflect that he has not been employed throughout the period on appeal. Additionally, they indicate that the pain caused by his service-connected disabilities interfere with his ability to perform various physical activities. For instance, an August 2018 pain assessment indicates that he rated the pain in his low back at an 8 out of 10 in severity, that kneeling, lifting, standing, and walking increased his pain. See August 2018 VA Primary Care Nursing Note; June 2017 VA Primary Care Nursing Note; December 2016 VA Primary Care Nursing Note. In a June 2008 VA treatment record, he reported chronic low back pain that he treated with opioids, with mild relief. Additionally, the Veteran has been afforded multiple VA examinations in connection with his service-connected disabilities. For instance, at a June 2008 VA examination on his back, the Veteran reported that the pain in his back caused back seizures or muscle spasms, which were treated with prescribed bedrest. He also reported flare-ups of his lumbar pain that occurred between eight and 10 times a year, which would cause him to take to his bed. He reported that he used a corset for his back and that he was unable to work as a welder because of his lumbar pain. In June 2010, he underwent additional an VA examination. He continued to experience chronic low back pain and stated that he could not sit, stand, or walk for any extended period of time, and that his ability to bend and left was impaired. He also indicated that his back would seize up at times and that he would require treatment at a hospital when this happened. With respect to his left ankle, he reported chronic ankle instability, particularly during weight-bearing. He indicated that he had worked several years ago as an iron worker but that he was unable to continue this line of work due to his back condition. In a September 2011 general VA examination, he reported that he was presently unemployed and had previously worked as a welder. The VA examiner noted that he was able to engage in activities of daily living without restriction. In a separate October 2011 VA examination, he reported that the pain in his left ankle that flared up on weight-bearing and prevented him from walking long distances or for longer than one hour. He also stated that his ankle pain impacted his ability to work because he was unable to walk or stand for greater than one hour. Ultimately, the VA examiner opined that he was independent of transferring and able to perform all activities of daily living. Although he was limited in his ability to perform physical work, he was not restricted in his ability to perform sedentary work. With respect to the Veteran’s back disability, he reported increasing low back pain, as well as muscle spasms that required bedrest and injections. He reported not being able to lift things, walk long distances greater than 300 feet, sit or stand for longer than one hour, or pick up things heavier than 10 pounds as a result of his back pain. In a December 2011 VA examination with respect to his neck, the Veteran reported daily neck pain at a 5 out of 10 and complained of flare-ups after physical activity or walking. The VA examiner opined that the neck condition did not impact his ability to work since he had no limitations in range of motion in his neck and was able to perform activities of daily living without difficulty. Subsequently, the Veteran underwent VA examinations on his back, neck, and ankle in October 2017. With respect to the back, he indicated that he had constant dull pain in his back, as well as sharp pain and muscle spasms when he walks for a long time. He also stated that he had constant, sharp pain in his neck that worsened with movement. Last, he reported that his left ankle would become swollen after walking long distances and that he experiences intermittent pain. The VA examiner stated that he did not report any flare-ups or functional impairments and ultimately opined that he could perform sedentary work. Additionally, the VA examiner noted that although the Veteran reported difficulty with ambulation and driving very long distances, he was able to drive himself to the examination, did not have a brace or cane with him when he arrived, and exited his vehicle without difficulty. However, the Veteran and his wife submitted affidavits indicating that his wife drove during most of the trip to the October 2017 VA examination before switching with the Veteran so he could drive the last 30 minutes. He also indicated in the affidavit that he is unable to drive for extended periods of time because it hurts his back, neck, and left ankle. Additionally, he stated that he had removed his back brace before exiting his vehicle because it had been hurting him on during the car ride and he thought the examiner would ask him to remove it anyway. Last, the affidavits indicate that his wife had to help him get out of the car. The Veteran also submitted a February 2015 independent medical examination performed by Dr. W.G. and a September 2017 private vocational expert opinion from Z.F. Ultimately, they opined that it was at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment due to his service-connected disabilities since at least February 2008. In the independent medical examination with Dr. W.G., he opined that it was at least as likely as not that the Veteran had been unable to secure and follow substantially gainful employment since the end of 2005 as a direct result of his service-connected back and ankle conditions. Within his report, Dr. W.G. noted that there was marked limitation of motion, muscle spasms, point tenderness, and the loss of ability to walk over 100 yards, sit or stand for more than 15 minutes, lift more than 10 pounds, or turn the neck to the right without pain in the upper left extremity. Dr. G.W. also noted that the Veteran could not sit for more than 15 minutes without developing low back and neck pain, and that any attempts to use the computer were frustrated by pain and weakness in the left hand. Likewise, in Z.F.’s vocational opinion, Z.F. indicated that the Veteran last reported working as a welder in 1995 because of the pain from his service-connected disabilities, particularly his back. He noted that the Veteran had high absenteeism to VA appointments because he could not drive or be a passenger for long trips and because his pain medications limit his driving tolerance. He reported various physical limitations with respect to reaching, sitting, standing, walking, bending or twisting, kneeling, stooping, squatting, climbing, balancing, and driving. He also indicated that his wife would do housework, including laundry, chores, and cooking, because of his difficulty with standing. With respect to his education, Z.F. noted that the Veteran had approximately an eighth-grade education and a certificate in welding from his time in the military. Z.F. also reviewed the Veteran’s work history, including his part-time, limited self-employment. The Veteran reported to Z.F. that he would hire local individuals to assist him with landscaping jobs, such as cutting lawns, moving and trimming shrubs, and cutting old tree limbs, up until 2005. He reported that this work did not generate a steady income and that his SSA earning statements showed no earnings after 1996. Prior to his limited self-employment, he noted, the Veteran was employed as a welder for approximately three years. After reviewing the Veteran’s service records and post-service medical records, as well as pertinent VA examination findings and lay statements, Z.F. concluded that the Veteran’s service-connected disabilities and their resulting limitations, such as his impaired sleeping habits, had at least as likely as not prevented the Veteran from securing and following substantially gainful employment, including unskilled sedentary employment, since at least 2002. Although prior VA examiners had opined that he could perform sedentary employment, Z.F. disagreed, as the Veteran’s flare-ups of his disability frequently resulted in several days’ bedrest. He stated that this would preclude substantial gainful activity due to the unpredictability of the exacerbations of his symptoms, which would impact his ability to maintain attendance and meet common employer expectations related to consistent work performance and reliability. Moreover, he opined that the Veteran would be unable to meet the physical requirements of even sedentary jobs because of his inability to lift up to 10 pounds occasionally or sit most of the time without pain. In deciding this claim, the Board must analyze the probative value of the evidence, account for evidence that it finds to be persuasive or unpersuasive and provide for reasons and bases for rejecting or accepting any material evidence. A medical opinion must do more than merely state a conclusion regarding the etiology of the claimed disorder; instead it must also support the conclusion with sufficient rationale and explanation. See Stefl v. Nicholson, 21 Vet. App. 120 (2007). The probative value of an opinion depends, in part, on the extent to which it reflects “clinical data or other rationale.” Bloom v. West, 12 Vet. App. 185, 187 (1999). The Board notes that the issue of entitlement to TDIU is an adjudicatory, not a medical, determination, and that it is an error to rely on a medical examiner’s opinion on a purely adjudicative matter. See Delrio v. Wilkie, 32 Vet. App. 232, 242 (2019). Determining whether a veteran’s physical and mental abilities and limitations allow him to perform the tasks required for employment requires vocational expertise with respect to the working conditions and demands of various jobs. See Moore v. Nicholson, 21 Vet. App. 211, 219 (2007). With this in mind, and after considering the evidence both for and against the claim, the Board finds that the private vocational experts’ opinions are more persuasive than the VA examiners’ opinions with respect to the issue of unemployability. To that end, Z.F. and Dr. W.G. thoroughly described the impact of the Veteran’s limited ability to perform tasks such as sitting, standing, and walking on his ability to secure and maintain employment, including employment that does not require physical labor. Indeed, Z.F. explained in comprehensive detail why the Veteran’s functional limitations would prevent him from sitting for meaningful lengths of time or from being a reliable employee. In providing their conclusions, Dr. W.G. and Z.F. demonstrated that they had carefully reviewed relevant evidence of record and provided detailed rationales for their opinions. Their conclusions are supported by other lay and medical evidence of record, including the Veteran’s statements regarding his functional limitations in various VA examination reports of record. The October 2017 VA examiner, on the other hand, provided a conclusory opinion stating that the Veteran could perform sedentary work. An opinion that does not provide a sufficiently detailed rationale is inadequate. Moreover, the October 2017 VA examiner did not review all pertinent evidence, such as the Veteran’s other medical records or Dr. W.G.’s independent medical evaluation, in reaching his conclusion regarding sedentary work. Moreover, the October 2017 VA examiner’s reports stated that the Veteran did not report any flare-ups or functional impairment, which is inconsistent with the Veteran’s lay statements, post-service treatment records, and other recent VA examinations of record. Furthermore, as explained in the affidavits submitted by the Veteran and his wife, the October 2017 VA examiner made numerous incorrect assumptions with respect to the Veteran’s ability to drive long distances and ambulate without assistive devices. As such, the Board finds the October 2017 VA examiner’s opinion regarding TDIU to be unpersuasive. Additionally, although other VA examiners have indicated that the Veteran could independently perform activities of daily living, they did not specifically opine as to whether the combination of his back, neck, and ankle disabilities impaired his ability to establish and maintain substantially gainful employment. As such, their probative value is limited in this regard. The Board acknowledges that the Director issued a negative advisory opinion in January 2020. As rationale, the Director indicated that the Veteran’s SSA records indicated that the Veteran was a high school graduate and that he worked long hours at his tree-trimming business until as late as 2009. Additionally, the Director referenced the October 2017 VA examiner’s findings before concluding that medical evidence of record did not show that both physical and sedentary employment was precluded solely due to his service-connected conditions. Although the January 2020 Director’s opinion is well-reasoned and detailed, its reliance on the October 2017 VA examiner’s opinion renders it of little probative value. See Hood v. Shinseki, 23 Vet. App. 295, 289–99 (2009). As such, after weighing the evidence regarding the functional impairment caused by the Veteran’s disabilities and his employment and educational history, the Board finds that the criteria for extraschedular TDIU have been satisfied. The Board recognizes that during the period on appeal, the Veteran periodically worked as a tree surgeon. However, the Board notes that marginal employment, for example, as a self-employed worker, shall not be considered “substantially gainful employment.” 38 C.F.R. § 4.16(a). See also Moore, 1 Vet. App. at 358. Marginal employment may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16(a). Such situations may include, but are not limited to, employment in a protected environment such as self-employment or a family business. Thus, to the extent that the Veteran did business as a tree surgeon during the period on appeal, the evidence does not show that such employment was more than marginal. Indeed, the Veteran’s income has not been shown to exceed the poverty threshold at any point during the period on appeal. Moreover, any work he did as self-employed tree surgeon was protected employment, since the Veteran could and did accommodate himself by setting his own part-time schedule and hiring others to absorb his work responsibilities. Since marginal employment is not substantially gainful employment, the Board finds that this Veteran engaged in only marginal employment as of February 13, 2008. (Continued on the next page)   In sum, and after resolving the benefit of the doubt in favor of the Veteran, an extraschedular TDIU for the period from February 13, 2008, is warranted. 38 C.F.R. §§ 3.102, 4.16(b). M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.