Citation Nr: 21008630 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 15-16 730 DATE: February 17, 2021 ISSUE Entitlement to an effective date prior to prior to July 21, 2013 for the award of a total disability rating based on individual unemployability due to service-connected disability (TDIU), to include extraschedular consideration. ORDER Entitlement to a total disability rating based on individual unemployability is granted effective October 27, 2012, but no earlier. FINDINGS OF FACT 1. For the period between November 19, 2011 and October 27, 2012 the evidence reflects that the Veteran was employed in a substantially gainful occupation and was not in a protected or sheltered work environment. 2. The evidence has shown that the Veteran has been unable to secure and follow substantially gainful employment due to his service-connected disabilities from October 27, 2012, but no earlier. CONCLUSION OF LAW The criteria for a finding of TDIU have been met from October 27, 2012, but no earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16 (a), 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from June 1982 to March 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this issue in November 2018 for further development and for a new VA examination to be conducted. In June 2020 the RO issued a rating decision granting TDIU, effective July 21, 2013. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board's November 2018 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Therefore, the Board will proceed to the merits of the issue on appeal. TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. § 4.16. Normally, consideration is given to such an award only if the Veteran has a single service-connected disability ratable at 60 percent or more, or if he has two or more such disabilities with a combined rating of 70 percent or more, with at least one disability ratable at 40 percent or more. 38 C.F.R. § 4.16 (a). However, failure to satisfy these percentage standards is not an absolute bar to an award of TDIU. 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). In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), the case shall be submitted for extra-schedular consideration. For the above purpose of determining if the schedular threshold is met, one disability includes: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). It is provided further that the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the Veteran unemployable. Id. Marginal employment shall not be considered substantially gainful employment. For purposes of this section, marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 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. Id. Age may not be considered as a factor in evaluating service-connected disability; and unemployability, in service-connected claims, associated with advancing age or intercurrent disability, may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. Under applicable criteria, VA shall consider all lay and medical evidence of record in a case with respect to benefits under laws administered by VA. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) to include extraschedular consideration prior to July 21, 2013. The Veteran contends that he is entitled to TDIU because his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. The period on appeal for TDIU is from one year prior to the date of increased rating claim, here November 19, 2012. Therefore, the relevant period before the Board is from November 19, 2011 until July 21, 2013. In evaluating the Veteran's claim of entitlement to a TDIU, the Board has considered the Veteran's education, employment history, VA and private examinations of record, and the Veteran’s contentions. For the reasons explained below, the Board finds that entitlement to a TDIU is warranted from October 27, 2012, but no earlier. Prior to October 27, 2012 the Veteran had a combined disability rating of 80 percent. He had been service- connected for the following 13 conditions: degenerative joint disease lumbar spine evaluated at 20 percent disabling, migraines evaluated as 30 percent disabling, vertigo to include dizziness evaluated 30 percent disabling, radiculopathy left upper extremity evaluated as 20 percent disabling, radiculopathy right upper extremity evaluated as 20 percent disabling, degenerative joint and disc disease of the cervical spine evaluated as 10 percent disabling, right shoulder strain evaluated as 20 percent disabling, right elbow evaluated as 10 percent disabling, tinnitus evaluated as 10 percent disabling, GERD evaluated as 10 percent disabling, costochondritis evaluated as non-compensable, allergic rhinitis evaluated as non-compensable, and hypertension evaluated as non-compensable. Hence, as of October 27, 2012 the Veteran has met the criteria for schedular TDIU rating per 38 C.F.R. § 4.16 (a). The remaining question, then, is whether the Veteran's service-connected disabilities rendered him unemployable within the meaning of 38 C.F.R. § 4.16. As it relates to the Veteran’s education, an October 2012 treatment note from Dr. W.M.S. as well as the Veteran’s Social Security Administration records reflect that the Veteran has completed two years of college. In his April 2013 VA Form 21-8940, the Veteran indicated that he last worked as a Department Manager at Lowes from his time of discharge from the Army in March 2006 until October 2012. The record reflects that in August 2011 the Veteran injured his back while at work and sustained a multilevel lumbar strain. Following the injury, the Veteran received multiple epidural steroid injections, and in February 2012 he underwent a microdiskectomy at L2-L3. The Veteran was also sent to physical therapy and was prescribed multiple medications. He received Workman’s Compensation, and in October 2012, he filed a successful claim for Social Security Disability benefits. An Administrative Law Judge with the Social Security Administration found that the appellant had been disabled since August 10, 2011. The Veteran noted in his VA Form 21-8940 that following his injury, Lowes allowed him to participate in a “transitional work program” which allowed him to work for a charitable organization with the goal of transitioning back to his former position. The Veteran noted that he was unable to perform the work and therefore Lowes gave his job to someone else. In May 2013, the Veteran provided VA a copy of his payroll and compensation paperwork which reflected that his last day of work at Lowes was October 26, 2012. Turning to the medical examinations of record, the Veteran was afforded VA examinations in June 2006 for various conditions including his digestive disorder, cervical spine, lumbar spine, and migraine headache disabilities. At that time the examiner did not note that any of these conditions had an impact on the Veteran’s occupational abilities. The Veteran also received an audiological examination in June 2006. At that time the examiner did not note any impact on the Veteran’s occupational ability due to his tinnitus. In September 2006 the Veteran was afforded another VA examination for his GERD. At that time the examiner did not note that the Veteran’s disability had any impact on his ability to work. In May 2012 the Veteran was afforded a VA examination for his degenerative joint disease lumbar spine condition and radiculopathy. The Veteran reported that sitting and standing for prolonged periods of time made his back pain worse and any increased activity, such as walking also increased his lower back pain. At that time the examiner noted that the Veteran’s back pain, decreased ROM and flare-ups from significant walking and lack of mobility due to his radiculopathy did have an impact on his occupational abilities. The examiner noted that the Veteran needed to change positions frequently to prevent increased pain. The examiner also noted that although the Veteran had been released for work with very limited duties, the limitations made it very difficult for him to perform any job duties. Due to the Veteran’ severe low back pain and radiculopathy he was only able to work 1/10th of the work hours. The Veteran was also afforded a VA examination in May 2012 for his migraines. At that time the Veteran stated that his headaches had become worse. He stated that he had severe headaches 3-4 times a month which required him to leave work. The headaches led to episodes of photophobia, nausea and vomiting. At that time the examiner opined that the Veteran’s migraines did impact his ability to work. Specifically, the examiner noted that the Veteran’s severe headaches which occurred 2-3 times a month would be debilitating enough for him to have to leave work. The examiner also noted, however, that otherwise the Veteran’s headaches would not prevent him from maintaining full time employment. In October 2012 the Veteran was examined by private physician Dr. W.M.S. The Veteran reported continued pain in his lower back with radiation to his left lower extremity. The examiner noted that the Veteran needed a cane to stand and walked with a significant limp. The examiner also stated that the Veteran received little relief from the use of anti-inflammatory medications and steroid injections and his condition essentially had not improved from the time of his injury. The examiner noted that the Veteran was participating in a vocational retraining program while working for Habitat for Humanity. This position required the Veteran to perform sedentary work. The Veteran had reported to him that he had to get up frequently to change positions but was able to get through about half of the workday. Dr. W.M.S. ultimately opined that as of the date of the examination there was no way that the Veteran would be capable of resuming his position at Lowes. His occupation at Lowes required heavy work and the Veteran would no longer be capable of that type of activity following his injury. The Veteran was afforded VA general examinations in April 2013 for several of his service-connected disabilities. At that time the examiner opined that the Veteran’s lumbar spine disability, vertigo and migraine headaches prevented him from obtaining gainful employment. Specifically, the examiner opined that the Veteran’s lumbar spine disability prevented him from performing physical labor because of the limitation on his ability to bend and twist. The examiner also opined that the Veteran was unable to perform sedentary work because his back condition required him to frequently change positions. As it relates to the Veteran’s vertigo the examiner opined that the Veteran would be unable to work during his vertigo attacks due to symptoms such as severe dizziness, nausea and vomiting. The examiner also opined that the Veteran would be unable to perform sedentary work during vertigo attacks. Finally, as it relates to the Veteran’s migraines the examiner opined that the Veteran would not be able to perform at work, including sedentary work, due to symptoms such as pain, photophobia and nausea during his migraine attacks which occurred approximately 3-4 times a month. The lay and medical evidence reflects that the Veteran’s service-connected disabilities limited his ability to work in both sedentary and active occupations as of October 27, 2012. The Veteran has completed two years of college and worked for Lowes as a department manager which is a primarily active occupation, for his entire career following his discharge from the Army in March 2006. There is no evidence to suggest that the Veteran has other vocational training. The Board assigns considerable probative value to the October 2012 medical opinion of Dr. W.M.S. In that regard the examiner stated that at that time the Veteran would be unable to perform the type of physical activity that would be required for him to return to his former occupation. The examiner also noted that the Veteran was limited in his ability to perform sedentary work as he was only able to get through half of the workday due to his need to frequently change positions. Here, in weighing the lay and medical evidence of record, as well as the Veteran's education and work history, the Board finds that it is unlikely that the Veteran would be able to find substantially gainful employment in his prior field or in another profession or field due to the symptoms associated with his service connected disabilities. The Board finds that the preponderance of the lay and medical evidence of record is against a finding that the Veteran was rendered unemployable between November 19, 2011 and October 27, 2012 due to his service-connected disabilities. A review of the Veteran’s income and tax statements received by VA in May 2013 reflect the Veteran’s earnings between 2011 and 2012. These statements confirm that during this time the Veteran’s earnings were above the federal poverty guidelines for those years. The poverty guideline for one person ranged from $10,890 in 2011 to $11,170 in 2012 under the United States Federal Poverty Guidelines Used to Determine Financial Eligibility for Certain Federal Programs, available at https://aspe.hhs.gov/prior-hhs-poverty-guidelines-and-federal-register-references (last accessed February 11, 2021). Additionally, in his VA Form 21-8940, the Veteran reported that he last worked on October 26, 2012. Thus, the record does not reflect that for any portion of the period between November 19, 2011 and October 27, 2012 he was unemployed or earned below the poverty line. Additionally, the record does not reflect that at any point during the period on appeal the Veteran has asserted that his position, as a department manager at Lowes, was sheltered or protected. Therefore, the threshold matter of substantially gainful employment operates as a bar to a TDIU prior to October 27, 2012. Thus, after careful review of the record, including the medical evidence and the Veteran's statements regarding the impact of his disabilities on his ability to gain and maintain employment, the Board finds there is sufficient evidence to find that the Veteran's service-connected disabilities rendered him unemployable during the appeal period. See Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994) (TDIU may not be denied without producing evidence, as distinguished from mere conjecture, that the Veteran's disability does not prevent him or her from performing work that would produce sufficient income to be other than marginal). Affording the Veteran all benefit-of-the-doubt, the Board finds that the evidence is at least in equipoise regarding the question of whether the Veteran was unable to perform the physical and mental acts required for substantially gainful employment due to his service-connected disabilities. Accordingly, TDIU is warranted from October 27, 2012, but no earlier. The preponderance of the evidence, however, is against a finding that TDIU is warranted prior to that date. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Nettey, 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.