Citation Nr: 21008651 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 08-33 732 DATE: February 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities based on an extraschedular basis, is denied. FINDING OF FACT The ratings assigned for the Veteran's service-connected disabilities did not meet the percentage requirements of 38 C.F.R. § 4.16(a) for an award of TDIU, and the criteria for a TDIU on an extraschedular basis were not met. CONCLUSION OF LAW The criteria for a TDIU, to include on an extraschedular basis are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from July 1979 to July 1982. This matter originally came before the Board of Veteran’s Appeals (Board) from a February 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This case was before the Board in April 2018 when the Board denied a disability rating in excess of 30 percent for the Veteran’s PTSD and determined that a TDIU claim had not been raised by the record. The Veteran disagreed with that decision and appealed the April 2018 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In February 2019, CAVC granted a Joint Motion for Partial Remand (JMPR) presented by the parties and partially vacated the April 2018 Board decision only as to the issues addressed herein. In September 2019, pursuant to the JMPR, the Board remanded the issues of entitlement to a disability rating in excess of 30 percent for the Veteran’s PTSD and entitlement to a TDIU as it found it had been raised by the record. The matter was before the Board once again in August 2020 and the Board granted a higher rating for PTSD and remanded entitlement to TDIU for referral to the Director of Compensation Service for extraschedular consideration. The Board finds the August 2020 remand directives have been substantially complied with, and the matter is properly before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). Duty to Notify and Assist Neither the Veteran nor her representative have raised any issues with the duty to notify or duty to assist. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings liberally 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 – Legal Criteria A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). A TDIU rating may be assigned when the schedular rating is less than 100 percent and disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of one or more service-connected disabilities. If unemployability is claimed as a result of only one service-connected disability, it must be rated at 60 percent or more. If it is a result of two or more disabilities, at least one disability must be rated at 40 percent or more, with at least another sufficient disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.341(a), 4.16(a). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to show 100 percent unemployability to be entitled to TDIU. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (stating that entitlement to TDIU is based on an individual's particular circumstances). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the Veteran. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities based on an extraschedular basis The Veteran contends that TDIU is warranted based on her service-connected disabilities. As the Board has previously identified, total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38C.F.R. §3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran meets the schedular requirements. If there is only one service-connected disability, this disability should be rated at 60 percent or more; if there are two or more disabilities, at least one should be rated at 40 percent or more with sufficient additional service-connected disability to bring the combination to 70 percent or more. 38C.F.R. §4.16(a). To meet the requirement of “one 60 percent disability” or “one 40 percent disability,” the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). A review of the record shows that the Veteran is currently service connected for PTSD rated at 30 percent disabling from December 8, 2005 and at 50 percent from August 2020; lumbosacral strain rated at 10 percent disabling from December 8, 2005, and 20 percent from June 17, 2015; and left lower radiculopathy, claimed as lumbar radiculopathy bilateral due to back associated with lumbosacral strain with degenerative arthritis of the spine and chronic pain syndrome rated at 10 percent disabling from January 28, 2020. Her combined disability rating is 40 percent from December 8, 2005, and 60 percent from August 2020. Thus, the Veteran has not met the schedular disability rating criteria at any time during the appeal period and a TDIU, on a schedular basis, is not warranted. As noted above, the Board previously remanded the case to obtain an opinion from the Director of Compensation to determine whether an extraschedular rating is warranted. 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 of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing to 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)); see Anderson v. Shinseki, 22 Vet. App. 423 (2009). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013) ("applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). The Director of Compensation issued an opinion in December 2020 after reviewing the evidence of record. After reviewing the limitations caused by the Veteran’s service-connected conditions, the Director found that an exceptional disability picture was not shown to warrant an extraschedular rating. The Veteran’s high school education with some computer training and work experience cleaning and serving food was considered, and while the limitations of prolonged sitting, standing and ambulating were noted, the inability to maintain substantial gainful employment based on the Veteran’s education and training solely due to service-connected disabilities was not found. 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, and whether or not the Veteran’s disability picture is adequately contemplated by the assigned rating. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); Thun v. Peake, 22 Vet. App. 111, 115 (2008). For the reasons discussed below, the Board finds that throughout the relevant appeal period, the evidence does not show that a TDIU on an extraschedular basis is warranted. As noted above, the Veteran in currently in receipt of a 50 percent rating for PTSD after August 10, 2020. An August 2020 rating decision implemented the Board’s grant of a higher rating for PTSD. The Veteran had a 30 percent rating prior to August 10, 2020. An August 2020 VA examination found that the Veteran was employed at the time of the examination. However, the Board referred the issue to the Director of Compensation after noting that there were periods during the appeal period when the Veteran reported that she was unable to work when she was depressed. During the August 2020 VA examination, the Veteran reported symptoms of depressed mood, anxiety, suspiciousness, panic attacks that occur weekly or less often, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty adapting to stressful circumstances, including work and work like setting, inability to establish and maintain effective relationships. A previous VA examination in November 2019 noted symptoms of depressed mood, anxiety, mild memory loss, such as forgetting names, directions or recent events. Her occupational and social impairment was noted as occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal). Under the General Rating Formula for Mental Disorders, a 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). 38 C.F.R. § 4.130. A 50 percent rating is warranted when there is occupational and social impairment with reduced reliability and productivity due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A previous VA examination conducted in August 2015 noted occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The Veteran’s symptoms were noted as depressed mood, anxiety and mild memory loss, such as forgetting names, directions or recent events. Based on the level of severity and symptomatology of the Veteran’s PTSD and the established criteria found in the rating schedule as a whole, the Board observes that the Veteran’s disability picture is adequately contemplated by the rating schedule and any functional impairment is not shown to be exceptional in nature. Thus, an extraschedular rating is not warranted. See Morgan v. Wilkie, 31 Vet. App. 162, 168 (2019); Long v. Wilkie, Vet. App. No. 16-1537 (2020). The Veteran's spine disability is evaluated under Diagnostic 5242-5237, which pertains to lumbosacral strain and degenerative arthritis of the spine, which are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine. Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. It provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent disability rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. The Veteran’s symptoms during a July 2015 VA examination included pain when she bends or walks for long and tenderness to palpation. It was noted that the condition impacts her ability to do physically demanding work, but not other work. Forward flexion was noted as 0 to 45 degrees and extension of 0 to 10 degrees. Although guarding and muscle spasm was noted, it did not result in abnormal gait or abnormal spinal contour. Flare-ups were not reported. During a December 2019 VA examination, the Veteran’s range of motion was noted to be normal during range of motion testing, including during repetitive use testing and flare-ups. Her functional impairment was noted as functional loss in the ability to bend forward, lift, and loss of ability to stand, walk, or sit for long periods of time, as well as pain, there was no guarding or muscle spasm of the thoracolumbar spine. A November 2020 VA examination revealed that the Veteran’s range of motion at worse was forward flexion of 0 to 55 degrees and extension of 0 to 15 degrees with pain, fatigue, weakness and lack of endurance, causing functional loss. The Veteran did not report flare-ups. No guarding or muscle spasm was noted. Based on the level of severity and symptomatology of the Veteran’s back condition and the established criteria found in the rating schedule as a whole, the Board observes that the Veteran’s disability picture is adequately contemplated by the rating schedule and any functional impairment is not shown to be exceptional in nature. Thus, an extraschedular rating is not warranted. See Morgan, supra; Long, supra. The Veteran's radiculopathy of the left lower extremity is currently rated under 38 C.F.R. § 4.124a , DC 8520, which provides for rating paralysis of the sciatic nerve, manifested by complete paralysis ratable at 80 percent; severe incomplete paralysis with marked muscular atrophy ratable at 60 percent; moderately severe incomplete paralysis ratable at 40 percent; moderate incomplete paralysis ratable at 20 percent; and mild incomplete paralysis ratable at 10 percent. A November 2020 VA examination noted that the Veteran reported mild paresthesias and/or dysesthesias and mild numbness. Since the onset of the condition in 2018, the Veteran reported that the condition has not worsened or improved. Sensation testing revealed decreased sensation in the left foot. Mild incomplete paralysis of the left sciatic nerve was noted. Based on the level of severity and symptomatology of the Veteran’s radiculopathy of the left lower extremity and the established criteria found in the rating schedule as a whole, the Board observes that the Veteran’s disability picture is adequately contemplated by the rating schedule and any functional impairment is not shown to be exceptional in nature. Thus, an extraschedular rating is not warranted. See Morgan, supra; Long, supra. Therefore, entitlement to a TDIU due to service-connected disabilities based on an extraschedular basis is not warranted. In reaching this conclusion, the benefit of the doubt has been considered; however, the preponderance of the evidence is against the Veteran's claim. See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Accordingly, a TDIU is denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Khan, 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.