Citation Nr: 21009944 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 14-39 641 DATE: February 23, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) on an extraschedular basis from December 28, 2012, but no earlier, until October 9, 2014, is granted. FINDINGS OF FACT 1. Prior to October 9, 2014, the Veteran was service-connected for low back injury, bilateral hearing loss, left vocal cord paralysis residuals, and tinnitus, with a total evaluation of 50 percent. 2. In November 2020, under the provisions of 38 C.F.R. § 4.16(b), VA’s Director of the Compensation Service denied entitlement to an extraschedular TDIU due to service-connected disorders for the period prior to October 9, 2014. 3. Resolving reasonable doubt in the Veteran’s favor, from December 28, 2012, to October 9, 2014, the Veteran’s service-connected disabilities prevented him from engaging in any form of substantially gainful employment that was consistent with his education and occupational experience. 4. The Veteran submitted a claim for an increased rating for his service-connected back disability on December 28, 2012, and the medical evidence does not demonstrate that it was factually ascertainable that an increase in disability had occurred in the one year prior to that date. CONCLUSION OF LAW From December 28, 2012, but no earlier, until October 9, 2014, the criteria for the award of an extraschedular TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1974 to February 1979. This case comes to the Board of Veterans’ Appeals (Board) from a December 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office which, in part, denied a higher rating for the Veteran’s service-connected low back injury. In August 2017, the Veteran submitted an Application for Increased Compensation Based on Unemployability, and in an October 2017 rating decision, entitlement to a TDIU was granted, effective October 9, 2014, the date that the Veteran met the schedular requirements for a TDIU. In June 2020, the Board found that the Veteran had raised a claim of entitlement to a TDIU prior to October 9, 2014, and that this issue arose from the increased rating claim that the Veteran had appealed to the Board. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Because the Veteran had not met the schedular criteria for an award of a TDIU prior to October 9, 2014, the Board remanded the issue of entitlement to a TDIU prior to October 9, 2014 for referral of extraschedular consideration to the Director of Compensation Service. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996); see also Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, if a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). This regulation provides that consideration of such a rating is warranted if a veteran has one service-connected disability rated 60 percent or more or, if there are two or more disabilities, there must be at least one that is rated 40 percent or more, with the remaining disabilities combining to 70 percent or more. Id. For a veteran to prevail on a claim for a total disability evaluation based on individual unemployability, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. See 38 C.F.R. § 4.16; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Here, the Veteran did not meet the schedular criteria prior to October 9, 2014. From February 5, 2008, the Veteran was service-connected for a low back injury (40 percent), left vocal cord paralysis residuals (10 percent), and bilateral hearing loss (0 percent). Since December 28, 2012, he was also service-connected for tinnitus (10 percent). Throughout this period, he had a total evaluation of 50 percent. Entitlement to a total disability rating based on individual unemployability is warranted under 38 C.F.R. § 4.16(b) regardless of the veteran’s disability ratings where the service-connected disabilities alone render him unemployable. The Board cannot grant a total disability rating based on individual unemployability under 38 C.F.R. § 4.16(b) in the first instance, but must consider whether a remand for referring the case to the Director of Compensation Service is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). In June 2020, the Board referred this question to the Director of Compensation Service. The Director issued a decision in November 2020, in which she found that the Veteran’s service-connected disabilities did not prevent gainful activity prior to October 9, 2014. Because the Director determined that an extraschedular evaluation was not warranted, the Board now has jurisdiction to decide the extraschedular claim on the merits. After reviewing all of the evidence of record and affording the Veteran the benefit of the doubt, the Board finds that entitlement to a TDIU on an extraschedular basis is warranted from December 28, 2012 to October 9, 2014. The medical evidence of record show that the Veteran had been working as a fishing guide, but due to increasing problems with his back, was working less and eventually had to give up his fishing guide business. The Veteran submitted a statement in October 2017 explaining that he had worked as a postmaster from 1994 to 2005, and that he then started his own fishing guide business. He wrote that this work was very hard on his back, and that eventually he was only able to work 1 or 2 days, and then would need 3 or 4 days to recover from the strain. He wrote that eventually he could not do it anymore, and had to give up the business in 2011. The Veteran submitted a Disability Benefits Questionnaire in March 2014. The examining physician wrote that the Veteran’s back disability caused decreased range of motion, further decreased by painful motion. She found that he was unable to perform the duties required for employment. An October 2014 Disability Benefits Questionnaire was submitted by a different physician, who found even further decreased range of motion. He wrote that the Veteran also had flare ups causing extreme pain, trouble sleeping, and impaired mobility. He wrote that the condition impacted his ability to work because he could not sit or stand for more than 20 minutes, bending and twisting caused increased pain, and he sometimes had radicular symptoms. In an October 2017 vocational assessment, a private vocational expert provided an extensive discussion of the Veteran’s past work history, and found that the Veteran was unable to secure or follow a substantially gainful occupation even at a sedentary level due to his service-connected disabilities since December 2013. He also wrote that the Veteran would not have been able to obtain or maintain a substantially gainful occupation in a non-sheltered employment setting since 2011. This is also consistent with the Veteran’s VA and private treatment records, which show frequent complaints of low back pain. The December 2013 VA examiner also found that the Veteran’s service-connected back disability would impact his ability to work by causing problems with bending and walking for prolonged periods. The Board therefore finds that there is adequate evidence of record demonstrating that the Veteran’s symptoms, specifically those caused by his service-connected low back injury, caused severe impairment to his occupational functioning, and there are several evaluations from competent physicians which concluded that the Veteran was not able to maintain employment during this period. While the question of employability is ultimately one for the Board, as the fact finder, to decide, the findings of the medical experts provide highly persuasive evidence regarding whether the Veteran’s symptoms would cause any significant occupational impairment. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Board finds these evaluations to be highly persuasive, as they did provide accurate evaluations of the Veteran’s condition, and the October 2017 opinion, though retrospective, provided a very detailed review of the Veteran’s medical and employment history and is reasonably consistent with the other evidence of record regarding the Veteran’s physical condition from 2012 to 2014. The Board also finds that the appropriate period for the grant of a TDIU is December 28, 2012 to October 9, 2014. The Veteran submitted a claim for an increased rating for his service-connected back disability on December 28, 2012. As this is the appealed claim which the claim for a TDIU arose, this is the limits of the Board’s jurisdiction and the limits of the period that can be considered for whether the Veteran is entitled to a TDIU. The Veteran’s attorney has, however, requested an effective date from December 2011, one year prior to the filing of his claim for an increased rating, citing 38 C.F.R. § 3.400(o)(2). Under 38C.F.R. §3.400(o)(2), the effective date of an award of increased compensation is the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim for increase is received within a year following (otherwise the date of claim). The Board does not, however, find that the medical evidence establishes a factually ascertainable date during the period from December 28, 2011 to December 27, 2012 when the Veteran’s back disability, including its impact on his employment, underwent a worsening. The Board acknowledges that the Veteran submitted a VA Form 21-8940 in August 2017, where he wrote that he became too disabled to work on December 31, 2011. The Veteran also reported to the October 2017 vocational expert that he had closed his fishing business in 2011. The Board finds that this assertion, is not, however, consistent with the other evidence of record. The Veteran’s VA treatment records show that in March 2012, he reported that he was currently working as a fishing guide, and in April 2012, he reported to his primary care nurse that he worked as a fishing guide and repaired small motors. These statements are particularly reliable, as they were made in the course of treatment, and the Veteran would have no reason to mislead his treating providers regarding whether or not he was still working. The Board notes that his statements from 2012 are found to be more reliable than statements made much later recalling the details of an event. See Owens v. Brown, 7 Vet. App. 429, 433 (1995); Curry v. Brown, 7 Vet. App. 59, 68 (1994) (contemporaneous evidence has greater probative value than history as reported by the veteran). The Board therefore finds that the Veteran’s 2017 assertion that he stopped working in December 2011 is not credible in light of the evidence of record from that time, as it directly contradicts his own reports to his treating medical professionals that he was still working as a fishing guide. The Board accepts that memory is fallible, and the Veteran’s reports of when he retired, made around 5 years after his actual retirement, may not be due to an attempt to misrepresent the facts, but is merely a mistake regarding past dates. See, e.g., Seng v. Holder, 584 F.3d 13, 19 (1st Cir. 2009) (notwithstanding the declarant’s intent to speak the truth, a statement may lack credibility because of faulty memory). As it is not factually ascertainable that the Veteran’s disability underwent a worsening in the one year period prior to his December 28, 2012 claim, the Board finds that an effective date earlier than December 28, 2012 for the grant of an extraschedular TDIU is not warranted. Based on the foregoing, the Board therefore finds that the evidence is at least in equipoise as to the whether, from December 28, 2012 to October 9, 2014, the Veteran’s service-connected disabilities prevented him from obtaining and retaining substantially gainful employment consistent with his educational background and work experience. Entitlement to a TDIU on an extraschedular basis from December 28, 2012 to October 9, 2014 is granted. See Wise v. Shinseki, 26 Vet. App. 517, 531 (2014) (“By requiring only an ‘approximate balance of positive and negative evidence’ the Nation, ‘in recognition of our debt to our veterans,’ has ‘taken upon itself the risk of error’ in awarding... benefits.”). DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mary E. Rude, 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.