Citation Nr: 21009148 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 08-26 818 DATE: February 19, 2021 ORDER Entitlement to a finding of total disability based on individual unemployability due to service-connected disabilities (TDIU), on an extraschedular basis, from August 17, 2009, to July 13, 2016, is granted. FINDING OF FACT The preponderance of the evidence establishes the Veteran was unable to obtain and maintain substantially gainful employment due to his service-connected disabilities prior to July 13, 2016. CONCLUSION OF LAW The criteria for entitlement to TDIU, on an extraschedular basis are met prior to July 13, 2016. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1969 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from March 2007 and December 2009 rating decisions by the Montgomery, Alabama Regional Office (RO) of the United States Department of Veterans Affairs. The Veteran and his wife testified at a February 2019 travel board hearing held before the undersigned Veterans Law Judge (VLJ) at the RO. A transcript of the hearing is associated with the claims file. The Veteran seeks entitlement to TDIU, on an extraschedular basis, prior to July 13, 2016. The Veteran asserts that his service-connected disabilities prevented him from securing and maintaining substantially gainful employment prior to that date. The claim for TDIU arises from both a formal September 2008 claim and a claim inferred from a claim for increase filed in January 2007. In a July 2019 Board remand, the Board acknowledged that the Veteran did not meet the schedular percentage requirements for a TDIU for the period prior to July 13, 2016. However, the Board noted that the Veteran’s lay statements were sufficient to raise the possibility of entitlement to a TDIU on an extraschedular basis. The Board also noted that the evidence of record indicated the Veteran had not been employed full-time since 1996 after being placed on light duty by his employer; he was unable to complete the limited lifting that was required for this position. Additionally, the Board noted that the Veteran had a GED but no other education or training. Therefore, the Board remanded the issue to the Director of Compensation and Pension Service (C&P) to consider whether a TDIU may be awarded on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Veteran’s file contains a Social Security Administration (SSA) decision dated December 1996 which reflects that the Veteran was granted disability benefits due to epicondylitis with ulnar neuropathy, bilateral carpal tunnel, hypertension, ulnar nerve damage, anxiety, depression and was status post surgery for colon cancer. VA treatment records from 2008 to 2009 reflect treatment from complaints of back pain. An August 2009 physical therapy assessment noted the Veteran reported he was unable to ambulate without an assistive device, had difficulty transitioning from supine position to sitting up and reported difficulty with prolonged ambulation. In October 2009, the Veteran was denied VA Vocational Rehabilitation and Employment services after VA determined it was not reasonable to expect the Veteran to be able to train for or secure as suitable job at that time due to his work history and his disability. A December 2009 Vocational Rehabilitation Summary noted the Veteran had been found to have a serious employment handicap and that is was not feasible for him to achieve a vocational goal; he was rated 20 percent for his service-connected degenerative arthritis of the spine. The Veteran’s service-connected lumbar spine disability was found to contribute in substantial part to his employment handicap as he is restricted in the types of work he can perform due to the primary and secondary effects of his degenerative arthritis of the spine. VA Vocational Rehabilitation determined that the Veteran was unable to overcome his impairment to employability because he was lacking transferable skills and work experience that would qualify him for suitable employment compatible with his disabling limitations and consistent with his aptitudes and abilities. Physically, he was found unable to maintain any type of employment that requires sitting to standing, or prolonged standing/walking. The Vocational Rehabilitation Counselor noted that the local area labor market did not offer reasonable opportunities for suitable employment for someone with this veteran’s transferable vocational skills and present disability restrictions and stated that the current status of his unemployment is outside the Veteran’s control. At a February 2011 VA spine examination, the Veteran reported experiencing severe, constant back pain; worse for standing, bending and when he gets up in the morning and better for sitting, rest, avoidance of activities and prescription medication. The Veteran used a cane and was unable to walk more than a few yards. Range of motion was limited: flexion from 0 to 15 degrees, extension from 0 to 5 degrees, bilateral lateral flexion from 0 to 5 degrees, and bilateral lateral rotation from 0 to 5 degrees. Objective evidence of pain on motion was noted. VA examiner noted the Veteran’s degenerative disc disease of the lumbar spine prevented him from playing sports and exercising, had a severe effect on chores, and a moderate effect on recreation, driving and bathing. A September 2012 letter from the Veteran’s private physician Dr. DB, noted that the Veteran’s medical problems included degenerative disc disease, ulnar neuropathy, ulnar nerve damage, and a history of colon cancer. Dr. DB opined that physical labor would not be recommended due to the chronic pain from these conditions. Dr. DB stated that was difficult for the Veteran to sit or stand from more than a few minutes at a time, and that the Veteran was unable to lift or carry excess weight due to the many problems with his lumbar spine. Dr. DB noted that the Veteran’s “day-to-day activities have been effected greatly from his conditions which causes involuntary cramping when forced to remain in a certain position for more than mere minutes. With his history of serious illness, I recommend he be excused from physical and sedentary work.” In July 2019, the Board remanded the matter for referral to the Director of Compensation and Pension Service (C&P) for consideration of the Veteran’s entitlement to a TDIU on an extraschedular basis, supported by a full statement of the Veteran’s service-connected disabilities, educational and vocational attainment, and employment history and all other factors having a bearing on the issue in accordance with 38 C.F.R. § 4.16(b). In September 2020, a determination was received from the Director of Compensation and Pension which found that the Veteran was not entitled to a TDIU on an extraschedular basis pursuant to the provisions of 38 C.F.R. § 4.16(b) prior to July 13, 2016. The Director noted that from January 22, 2007 to August 17, 2009 the Veteran’s total disability evaluation was 20 percent for his low back disability. As of August 17, 2009, the Veteran’s disability evaluation for his service-connected back disability was 40 percent. In her determination, the Director primarily relies on the Veteran’s SSA records and SSA’s grant of disability entitlement due to disabilities other than his service-connected back condition. She stated a review of the Veteran’s treatment reports shows his back condition and limited physical labor had no impact on sedentary work such as computer and phone work. After a review of the Director’s determination, it is apparent that evidence of record which was favorable to the Veteran was not considered in the determination. Notably, the VA Vocational Rehabilitation determination and records, and the statement of Dr. DB, were not addressed in the C&P determination. The Board finds that the Veteran is entitled to TDIU on an extraschedular basis as of August 17, 2009, the date his disability evaluation for central disc bulging at L5-S1, lumbar spine strain, residual of low back injury was increased to 40 percent. Prior to that date, the sole service-connected condition was the low back, rated only 20 percent disabling; while this slowed or impaired some work-related activity, especially manual labor, the majority of occupational impairment came from nonservice-connected conditions, as shown by SSA. The back alone would not prevent employment except in the heaviest of labor during that period, even given the limitations of education and training. Additionally, the Board finds the f C&P determination failed to fully discuss the evidence of record particularly favorable to the Veteran, such as his education and vocational training levels. Therefore, the Board gives greater weight to the determination of VA Vocational Rehabilitation and Dr. DB and does not attribute much probative weight to the opinion of the Director of C&P. The Board finds that the preponderance of the evidence favors the Veteran and entitlement to a TDIU on an extraschedular basis is granted effective August 17, 2009. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. M. Lunger, 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.