Citation Nr: 21009662 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-35 691 DATE: February 23, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period beginning August 30, 2019, is granted. REMANDED Entitlement to a rating in excess of 20 percent for lumbar spine spondylolisthesis is remanded. Entitlement to a total disability rating due to individual unemployability (TDIU) on an extraschedular basis for the period prior to August 30, 2019, is remanded. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities preclude gainful employment consistent with his education and occupational experience for the period beginning August 30, 2019. CONCLUSION OF LAW The criteria for a TDIU during the period beginning August 30, 2019, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1966 to November 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in April 2018, on which occasion the claims were remanded. 1. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period beginning August 30, 2019. Based on a review of the record, the Board finds that the Veteran’s service-connected disabilities precluded substantially gainful employment starting August 30, 2019. 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), 4.19, 4.25.    Generally, to be eligible for a TDIU, a schedular percentage threshold must be met.  If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling.  If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more.  38 C.F.R. §§ 3.340, 3.341, 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 non-service-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 be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the Veteran. 38 U.S.C. § 5107. The Veteran was last employed in May 2015 as a bus driver. (4/23/2020, VA 21-8940, p. 2). For the period on appeal, service connection has been in effect for the following disabilities: lumbar spine spondylolisthesis (20 percent from July 30, 2012), right lower extremity sciatic nerve radiculopathy (20 percent from August 30, 2019), left lower extremity sciatic nerve radiculopathy (20 percent from August 30, 2019), left lower extremity femoral nerve radiculopathy (20 percent from August 30, 2019), and right lower extremity femoral nerve radiculopathy (20 percent from August 30, 2019). His combined rating is 20 percent from July 30, 2012, and 70 percent from August 30, 2019. As such, the Veteran meets the threshold requirements set forth under 38 C.F.R. § 4.16(a) as of August 30, 2019. Therefore, the Board must determine if the aforementioned service-connected disabilities precluded substantially gainful employment during this period.   In this regard, the Veteran submitted a May 2020 private vocational opinion wherein a private examiner opined that “it is at least as likely as not that [the Veteran] has been unable to secure and follow substantially gainful employment, to include sedentary unskilled employment, since at least July 2012 to the present.” (5/20/2020, Third Party Correspondence, p. 4). In rendering his opinion, the examiner noted that the symptomology of the Veteran’s service-connected disabilities result in: difficulty sitting, standing, and walking; need for excessive unscheduled breaks; severe fatigue; and marked limitation of concentration, focus, and pace. (5/20/2020, Third Party Correspondence, p. 4). Additionally, during an August 2019 a VA examiner noted that the Veteran’s frequent flare-ups of low back pain makes “daily activities very difficult.” The examiner further indicated that the Veteran’s low back pain and limited range of motion impedes his ability to lift, push, and pull. (8/30/2019, C&P Exam, 2, 10). Based on the aforementioned, the Board concludes that the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Accordingly, a TDIU is warranted for the period beginning August 30, 2019. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for lumbar spine spondylolisthesis is remanded. The reported symptomatology and functional impairment of the Veteran’s lumbar spine spondylolisthesis presents an unusual or exceptional disability picture and evidence suggests he has experienced marked interference with employment due to his low back disability. In this regard, the Veteran requested sick leave due to back pain in August 2012. (8/22/2019, Medical Treatment Record, p. 61). He was placed on sick leave in September 2012 for six weeks and again from October 25, 2012, to January 1, 2013. (8/22/2019, Medical Treatment Record, p. 68, 75). Given the extensive amount of sick leave taken by the Veteran due to his low back disability during the period on appeal, the Board finds that referral of this issue for an extraschedular rating is in order. Therefore, the issue is remanded so that the AOJ may forward the case to the Director of Compensation Service to address whether assignment of an extraschedular rating for lumbar spine spondylolisthesis is warranted. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). 2. Entitlement to a total disability rating due to individual unemployability (TDIU) on an extraschedular basis for the period prior to August 30, 2019, is remanded. The Veteran’s service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) during the period prior to August 30, 2019. Therefore, the claim for TDIU must be remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. The matters are REMANDED for the following action: 1. The AOJ should obtain copies of VA treatment records for the Veteran’s disabilities from September 2020 to the present. 2. Refer the Veteran's claim for an increased rating for lumbar spine spondylolisthesis to VA's Director of Compensation Service for extraschedular consideration. 3. Refer the Veteran’s claim for TDIU for the period prior to August 30, 2019, to VA’s Director of Compensation Service for extraschedular consideration. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Glenn, 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.