Citation Nr: 21010936 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 18-14 669 DATE: February 26, 2021 ISSUE Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU), for the period prior to March 14, 2020, to include extraschedular consideration. ORDER Effective January 6, 2014, entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU), to include extraschedular consideration is granted. FINDINGS OF FACT 1. For the period from January 6, 2014 to March 14, 2020, the Veteran was service connected for coronary artery disease at 30 percent disabling; degenerative arthritis of the lumbosacral spine at 20 percent disabling; residuals of an injury to the right and left ankle, tinnitus, obstructive pulmonary disease, bilateral hearing loss, radiculopathy of the bilateral lower extremities each at 10 percent disabling; and allergic rhinitis, essential hypertension, hemorrhoids, residuals of the excision of a cyst, residuals of the excision of a tumor, and recurrent lipomas, each at noncompensable ratings. The Veteran’s combined evaluation is 80 percent from December 2013. 2. The Veteran submitted a claim for an increased disability rating for his service-connected spinal disability, which was received by VA on January 6, 2014. The claim for entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU) was raised part and parcel of that underlying increased ratings claim. 3. Effective January 6, 2014 through March 14, 2020, and resolving doubt in favor of the Veteran, the Veteran’s service-connected disabilities had rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Effective January 6, 2014 through March 14, 2020, the criteria for a finding of a TDIU under 38 C.F.R. § 4.16 (b) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16(b), 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from July 1961 to July 1969 and from July 1969 to July 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from September 2014 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, the Veteran filed a claim that he was entitled to an increased rating for his service-connected spine disability, which was received by VA on January 6, 2014. Following the September 2014 rating decision which denied that claim, the Veteran filed a timely Notice of Disagreement (NOD) in September 2015. He was issued a statement of the case (SOC) in November 2017, and a timely Form 9 was submitted in January 2018. The Veteran’s claim was then certified to the Board in November 2019. In December 2019, the Veteran’s claim was before the Board, and the issue of entitlement to TDIU was raised under Rice v. Shinseki, 22 Vet. App. 447, 453-54. (When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim.) Both of those claims were then remanded for further development and adjudication. Following the Board remand, in a rating decision from July 2020, the RO increased the Veteran’s rating for his service-connected spine disability to 40 percent, effective March 14, 2020. In that same decision, TDIU was granted with an effective date from March 14, 2020. Since the grant of the increased ratings claim during the course of an appeal does not affect the pendency of that appeal, the Veteran’s claim for an increased rating for his service-connected spine disability was still on appeal. AB v. Brown, 6 Vet. App. 35 (1993). And since the issue of entitlement to TDIU was raised under Rice in connection with the increased ratings claim, the issue of entitlement to TDIU for the period prior to March 14, 2020 was also on appeal. In a Decision from September 2020, the Board denied the Veteran’s claim of entitlement to an increased disability rating for the service-connected spine disability for both periods on appeal. Having said that, entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU), for the period prior to March 14, 2020, to include extraschedular consideration was remanded for further development and adjudication. Specifically, the Veteran’s claim was to be referred to the Director of Compensation Service for extraschedular consideration of a TDIU rating for the period prior to March 14, 2020. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Entitlement to total disability based on individual unemployability due to service-connected disabilities (TDIU), for the period prior to March 14, 2020, to include extraschedular consideration. The Veteran has claimed that he is unable to work due to his service-connected disabilities. As stated in the introduction, the Veteran has already been granted TDIU by the RO for the period from March 14, 2020. Having said that, since the Veteran has not been granted a total disability rating for the entire period on appeal, the Board will also address the Veteran’s claim of entitlement to TDIU for the period prior to March 14, 2020. AB v. Brown, 6 Vet. App. 35 (1993). 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. See 38 C.F.R. § 4.16. “Substantially gainful employment” is not currently defined in VA regulations. However, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 (b) as having two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of the following: the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In other words, the noneconomic component requires consideration of a Veteran’s ability to secure or follow that type of employment. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the period on appeal prior to March 14, 2020, the Veteran was service connected for coronary artery disease at 30 percent disabling; degenerative arthritis of the lumbosacral spine at 20 percent disabling; residuals of an injury to the right and left ankle, tinnitus, obstructive pulmonary disease, bilateral hearing loss, radiculopathy of the bilateral lower extremities each at 10 percent disabling; and allergic rhinitis, essential hypertension, hemorrhoids, residuals of the excision of a cyst, residuals of the excision of a tumor, and recurrent lipomas, each at noncompensable ratings. The Veteran’s combined evaluation is 80 percent from December 2013. While the Veteran does have a combined disability rating of 80 percent for the period on appeal, he does not have a single disability that is higher than 40 percent or more. Therefore, the Veteran does not meet the percentage threshold requirements for TDIU for the period on appeal. Having said that, VA’s policy is to grant a TDIU in all cases where service-connected disabilities preclude substantially gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16 (b). Importantly, the Board is precluded from assigning an extraschedular rating in the first instance. 38 C.F.R. § 4.16 (b). As a result, the Veteran’s claim was remanded in September 2020 so that the matter could be referred to the Director of Compensation Service (Director) for consideration of an extraschedular TDIU rating for the period prior to March 14, 2020. The RO first submitted a VA Memo in October 2020, which recommended that the Veteran be granted entitlement to TDIU on an extraschedular basis for the period prior to March 14, 2020. That recommendation was then forwarded to the Director. In a VA Memorandum dated December 2020, the Director denied entitlement to TDIU on an extraschedular basis. The Director’s conclusion was largely based on VAMC records that “failed to show an exceptional or unusual patter of treatment … that would show marked interference with employment.” Considering that the Director of C&P has had an opportunity to evaluate the Veteran’s claim for extraschedular consideration in the first instance, and since that consideration was denied, extraschedular consideration is now before the Board for the period on appeal prior to March 14, 2020. 38 C.F.R. § 4.16 (b). Bowling v. Principi, 15 Vet. App. 1 (2001). In evaluating a Veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16. 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). Turning to the evidence of unemployability, the Veteran has submitted several statements indicating that his spine disability, coupled with his others service-connected disabilities, causes him to be unable to work. He has frequently described time lost from his previous job, and that his spine disability necessitates bed rest during flare ups. The Veteran provided detailed statements, arguing that he needed periods of recuperation, and that maintaining employment would be impossible. See Form 9. The Veteran’s spouse has also submitted correspondence, including from January 2018, whereby she described the Veteran’s flare ups and the impact that his spine disability has had on his ability to work. The Veteran has also submitted an application for entitlement to TDIU, received by VA in February 2020. The application indicates that the Veteran’s spine disability eventually caused him to be too disabled to continue working. While he wrote that his spine disability effected his full-time employment in December 2013, he last worked full time in July 1991. The Veteran has not worked since retiring from the military after his approximately three decades of service. The Veteran is competent to report that which he experiences, such as the difficulty that his spine disability has caused on his ability to work. The Veteran’s spouse is also competent to describe that which she observes, such as the Veterans’ difficulty working due to his spine disability. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). Turning to the medical evidence, the Board is reminded that in a prior Board Decision from December 2019, it was determined that the April 2014 and September 2017 VA examinations were inadequate. As such, they will not be used to determine evidence of unemployability. The Veteran’s claims file contains a private medical report from Dr. J.W., submitted in February 2018. The private physician wrote that they were the Veteran’s provider and discussed the Veteran’s spine disability. The also wrote that the Veteran experiences flare ups and pain which “result in required recuperation and bed rest and making gainful employment difficulty, if not impossible.” Further records have been received by the Board from Dr. J.W., confirming that this physician is the regular physician for the Veteran, in relation to his spine disability. There is no evidence that the private examiner was not competent or credible, and as the report was based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the impact of the Veteran’s service-connected disability on his ability to work. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the Veteran is unable to maintain gainful employment due to his service-connected disabilities. To begin, the Board first acknowledges that the April 2014 and September 2017 VA examinations have been deemed inadequate, and as such cannot be used to assess the Veteran’s ability to maintain gainful employment during the period on appeal. As a result, the Board must turn to the private evidence of Dr. J.W., who indicated that the Veteran’s ability to work would be “difficult, if not impossible.” The Veteran has written that this is his regular private physician for his spinal disability, and further records in the Veteran’s claims file have confirmed this. The note from Dr. J.W., indicating that the Veteran’s spine disability requires recuperation and bed rest, has been furthered by the competent lay statements provided by the Veteran. The Veteran’s spouse has also confirmed that the Veterans’ spine disability makes the Veteran unable to maintain employment, as he often needs periods of rest and recuperation, and their statements have been largely consistent throughout the period on appeal. Finally, while the Board does not have medical evidence assessing the severity and functional impact of the Veteran’s other service-connected disabilities for the relevant period on appeal, affording the Veteran the benefit of the doubt, the Board finds that it is at least reasonable to assume that the service-connected residuals to his right and left ankle, his right and left lower extremity radiculopathy, his bilateral hearing loss, and his tinnitus, when taken together, may further impact his ability to maintain gainful employment. The Board also acknowledges that the Director denied that the Veteran’s service-connected disabilities caused him to be unable to maintain gainful employment. It is further noted however that this was done predominantly through assessment of the Veteran’s VA treatment records, and that neither the Veteran’s competent statements, nor the private medical evidence were mentioned in the December 2020 VA Memo. Importantly, the adjudicator is charged with interpreting the competent and credible evidence of record as a whole and reconciling such to accurately reflect the disability. Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009); 38 C.F.R. § 4.2. Moreover, the ultimate TDIU determination is placed on the VA adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). While the matter is close, the Board has afforded the Veteran the benefit of the doubt. In weighing the lay and medical evidence of record, as well as the Veteran’s education and work history, the Board finds that the weight of the evidence demonstrates that the Veteran is not able to obtain or maintain substantially gainful employment in his prior field or in another profession or field due to his service-connected disabilities. Furthermore, the Board is reminded that the effective date for an increased rating for disability compensation will be the earliest date as of which it is factually ascertainable that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2) (2016). A TDIU claim is a claim for increased compensation, and the effective date rules for increased compensation apply to a TDIU claim. Hurd v. West, 13 Vet. App. 449 (2000). When evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). (Continued on next page.) The Board has reviewed the claims file, including the one-year period prior to when VA received the Veteran’s increased ratings claim for his spinal disability. There is no evidence that an increase in disability occurred within one year from the filing of the Veteran’s claim. And while the Veteran has noted that he submitted the claim in December 2013, the Board recognizes that it is the date that VA received the claim that is determinative in this case. Thus, as the Veteran’s claim for entitlement to TDIU was raised as part and parcel of the underlying increased ratings claim, and since that claim was received by VA on January 6, 2014, the effective date for the grant of entitlement to TDIU is January 6, 2014. Thus, entitlement to TDIU on an extraschedular basis is warranted from January 6, 2014 through March 14, 2020. 38 C.F.R. § 4.16 (b). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.