Citation Nr: 21011634 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 08-26 292 DATE: March 2, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities from August 1, 2006, to April 22, 2013, on an extraschedular basis, is granted. FINDING OF FACT The evidence is in equipoise as to whether the Veteran was unable to secure and maintain substantially gainful employment as a result of her service-connected disabilities for the appeal period prior to April 22, 2013. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for entitlement to a TDIU due to service-connected disabilities on an extraschedular basis have been met from August 1, 2006, to April 22, 2013. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1981 to June 1988. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2006 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2009, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. In November 2009, September 2014, September 2017, October 2018, and July 2020, the Board remanded this matter to the RO for further development. As an initial matter, and in compliance with the July 2020 Board decision, the Agency of Original Jurisdiction (AOJ), attempted to obtain the Veteran’s complete VA Vocational Rehabilitation and Employment records. See July 2020 VA Memo. Unfortunately, these records were destroyed, and in a July 2020 notification letter, the Veteran was informed that despite efforts to obtain these records, the records were unavailable for review. See July 2020 VA notification letter. Accordingly, the Board finds that VA’s duty to assist has been satisfied with these records. Entitlement to a TDIU due to service-connected disabilities on an extraschedular basis for the appeal period prior to April 22, 2013 At the outset, the Board notes that although the AOJ, in a March 2017 rating decision, awarded a TDIU from April 22, 2013 (the date the Veteran met the schedular criteria for a TDIU), because VA received the Veteran’s TDIU claim on August 1, 2006, the issue of entitlement to a TDIU prior to April 22, 2013, remains on appeal. The Veteran continues to argue that she is unable to work due to her service-connected disabilities for the applicable appeal period. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). TDIU may be assigned where the schedular rating is less than total and it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of either (1) a single service-connected disability ratable at 60 percent or more, or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If the veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16(a), as in this case, he or she still may receive a TDIU on an extraschedular basis if it is determined that he or she is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). In cases where extraschedular consideration is warranted, referral to the Director of Compensation Service is necessary prior to a determination on eligibility. In determining unemployability for VA purposes, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Medical evaluations are probative to understanding the level of functional impairment; however, the ultimate determination of unemployability is a legal question, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Recently, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include 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 United States Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: 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. When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. In the present case, for the appeal period prior to April 22, 2013, the Veteran is service-connected for (1) lumbosacral degenerative disc disease, L5-S1, status post laminectomy with lumbar spondylosis rated as 40 percent disabling; (2) coccydynia rated as 10 percent disabling; (3) a surgical scar associated with her lumbar spine condition rated as 10 percent disabling; (4) a right foot injury rated as 10 percent disabling from October 31, 2007; (5) radiculopathy of the right lower extremity associated with her lumbar spine condition rated as 10 percent disabling from January 4, 2007; (6) a broken nose rated as noncompensable (0 percent); (7) right lower extremity thrombophlebitis rated as noncompensable; (8) left lower extremity thrombophlebitis rated as noncompensable; and (9) postoperative pilonidal cyst rated as noncompensable. For this appeal period, her overall combined disability is 50 percent from October 1, 2005, and 60 percent from January 4, 2007. As such, the Veteran does not meet the schedular criteria for a TDIU for the appeal period prior to April 22, 2013. Accordingly, the July 2020 Board decision remanded the Veteran’s case for administrative review for extraschedular consideration by the Director of Compensation Service under the provisions of 38 C.F.R. § 4.16(b). In November 2020, the Director of Compensation Service provided the requisite opinion and this opinion is associated with the claims file. After review of the evidence, the Board finds that the evidence is in equipoise as to whether the Veteran’s service-connected disabilities precluded her from obtaining and maintaining substantially gainful employment for the appeal period prior to April 22, 2013. Thus, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to a TDIU on an extraschedular basis is warranted from August 1, 2006, the date of the Veteran’s TDIU claim, to April 22, 2013. In this regard, the Veteran reports education through high school as well as additional training as a machinist/mechanic and one year of college. See November 2014 VA Form 21-8940. Specifically, the evidence reflects that she took some computer community college courses. See SSA Work History Report. She reports that she left college once she secured a job with the Tennessee Valley Authority (TVA) and worked full time for this company as a machinist until approximately 1995 when she was terminated from this employment position. See March 2010 and December 2020 VA treatment records. Thereafter, she pursued a lawsuit against her previous employer as related to workplace discrimination. See March 2010 VA treatment record; November 2014 Correspondence. She reports that she has tried to obtain employment since her time with TVA but has been unsuccessful in her pursuits. See November 2016 VA Form 21-8940. Review of the evidence of record indicates that she has not obtained a full-time employment position since her employment with TVA. She participated in a VA Vocational Rehabilitation and Employment program in 2001 with a goal of completing a work adjustment training at Goodwill. See January 2001 VA Rehabilitation Plan. However, she reports that she was terminated from the training program with Goodwill after a month due to her physical limitations and frequent absences with medical appointments. See March 2006 SSA disability report; see also October 2009 Board hearing transcript, p 29. The Board notes that while the evidence of record shows her work adjustment training with the Vocational Rehabilitation and Employment program was terminated, she also reported that she lost this position due to her attendance at VA smoking cessation classes. See February 2001 VA treatment record. Additionally, throughout the appeal period, the Veteran has been in receipt of Social Security Administration (SSA) disability benefits for her right knee condition (noted as her primary disability) and her cervical spine condition (noted as her secondary disability), both of which are not service-connected disabilities. Nevertheless, throughout the appeal period, the Veteran has consistently reported, including during her October 2009 Board hearing, that her service-connected disabilities have precluded her from securing and maintaining substantially gainful employment and that she has been unsuccessful with finding work. See e.g., November 2006 VA treatment record (reflecting the Veteran’s report that she is trained as a mechanic and has been trying to get a job but due to her physical limitations she has been told by employers that she is currently unemployable); October 2007 VA treatment record (reflecting the Veteran’s report that she is trying to find jobs but nobody will hire her as a machinist); and November 2014 VA Form 21-8940 (reflecting that she applied for work at Walmart and Sears in 2005 but was unsuccessful). Specifically, she reports physical limitations with bending, walking, stooping, and stretching associated with her service-connected disabilities. See November 2006 Report of Contact. In an October 2009 statement, the Veteran’s daughter reported that since the Veteran’s lumbar spine surgery, the Veteran has also experienced difficulty with walking and cannot bend over, stand, sit, or lay down for any extended period of time. In support of her TDIU claim, the Veteran submitted letters in August 2004 and May 2007 from Dr. K.S., who stated that the Veteran has several orthopedic complaints including cervical and lumbar degenerative disc disease and multiple areas of arthritis including her great right toe, left elbow, and both of her knees. He also noted that she experiences constant pain and is unable to perform any sort of work at this time or in the future. While the physician did reference several non-service-connected conditions, the Veteran’s service-connected lumbar spine condition and right foot condition are also referenced as contributing to her inability to perform any work. Likewise, the Veteran submitted a letter dated January 2007 from Dr. S.S. who indicated the Veteran was under his care for lumbar degenerative disc disease and opined that she was disabled from meaningful work as a result of her back injuries and subsequent surgery. Although the evidence shows the Veteran’s non-service-connected disabilities impacted her employment, the medical records corroborate that the Veteran experienced work-related inabilities as a result of her service-connected disabilities. For example, a March 2006 SSA physical residual functional capacity assessment reflects that after reviewing of the Veteran’s orthopedic surgeries, including with her right foot and lumbar spine, her impairments were noted as continuously deteriorating and she was assessed with a residual functional capacity that would not progress beyond a sedentary residual functional capacity at any time. In November 2006, the Veteran reported right sided pain when sitting in relation to her service-connected back condition and a treating VA physician noted that her back pain would likely be a lifelong management issue. See November 2006 VA treatment record. Likewise, a July 2008 private treatment record reflects that the Veteran’s right lumbar pain and right radicular symptoms required moderate assistance and that she was significantly limited in her ability to bend forward at her waist, sit comfortably (only for 15 minutes), and stand comfortably (only for 10 minutes) due to this disability. An April 2009 VA pain clinic consultation also reflects that the Veteran reported chronic low back pain that worsened with any activity and was worse when sitting while a March 2010 VA mental health treatment record reflects that the Veteran experienced chronic lumbago, which affected her overall functioning. She also used a cane for ambulation during the appeal period and testified, during the October 2009 Board hearing, that because she could not bend normally due to her low back, she had a grabber to pick objects off from the floor. See October 2009 Board hearing transcript, p. 8. Throughout the relevant appeal period, the Veteran also underwent multiple VA examinations, which reflect various occupational limitations due to her service-connected disabilities. For instance, the January 2007 VA examiner found that the Veteran’s service-connected lumbar spine disability affected her usual occupation as the Veteran was not employed and affected her usual daily activities. The examiner noted that she had moderate, constant daily pain from the right side of her lower back and was only able to walk one fourth of a mile. Likewise, the November 2009 VA examiner found that the Veteran’s service-connected back disability impacted her usual occupation as she was not employed and severely impacted several daily activities, including chores, shopping, exercise, sports, recreation, and traveling. The May 2010 VA back examiner also found that the Veteran’s lumbar spine disability prevented exercise; had severe effects on activities such as chores, shopping, sports, recreation, dressing, and traveling; and had moderate effects with feeding, bathing, grooming, and toileting. The examiner noted that her condition had worsened since 2005, she had radiculopathy with numbness in her right foot, used a cane, and was unable to walk more than a few yards as due to her conditions. In light of the above evidence, the Board finds that the medical documentation of record has provided credibility to the Veteran’s claim that her service-connected disabilities alone are a major barrier to employment. While the evidence shows that her non-service-connected disabilities impair her employment, both the medical and lay evidence of record reflect that the Veteran’s ability to perform physical work has also been significantly impaired due to her service-connected disabilities as she could not sit, stand, or walk for prolonged periods of time as a result of her lumbar spine, coccydynia, right foot, and right lower extremity radiculopathy disabilities. As the Veteran’s primary employment field, as a machinist, involved physical labor, the evidence indicates that her service-connected disabilities prevented her from performing the requirements of employment in her prior field. Indeed, the Board finds probative the many clinical findings documenting functional limitations as due to her service-connected disabilities as well as the VA examination findings reflecting that her lumbar spine disability impacted her employment and daily activities. To the degree that the Veteran would have been able to find a job for the applicable appeal period where she would be able to perform less physical work, the Board finds that from a practical standpoint, the Veteran would have been too limited to perform such an occupation since her service-connected lumbar spine disability impaired her ability to sit for prolonged periods of time. Additionally, given the Veteran’s educational and employment history, as well as her accounts of unsuccessful efforts at obtaining employment—documented in the medical records—the Board finds it unlikely that the Veteran would be able to obtain and maintain such a position. Further, based on the Veteran’s service-connected functional limitations, it is likely that job maintenance would be compromised due to the Veteran’s likely need for accommodations and absences with medical appointments. The Board acknowledges the negative determination made by the Director of Compensation Service in November 2020. The Director noted that while the medical evidence shows the Veteran would have difficulties engaging in physical employment, she would be able to do sedentary work. However, as discussed above, the evidence of record reflects that the Veteran’s service-connected disabilities impacted her occupational functioning and resulted in an inability to sit for prolonged periods of time. The January 2007 VA examination also notes that when the Veteran’s lumbar spine flared up, which was severe and lasted for hours, she had to be inactive until the flare-up resolved. This evidence suggests that lumbar spine flare-ups would likely impact her ability to reliably and productively work. Moreover, the Board, is not bound by an adverse determination by the Director regarding extraschedular entitlement to a TDIU. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In this regard, the Board reviews the Director’s determination de novo and it does not constitute evidence that must be weighed. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Accordingly, when weighing the evidence of record, the Board finds the evidence is in relative equipoise as to whether the Veteran was unable to maintain and sustain substantially gainful employment as a result of her service-connected disabilities for the appeal period. As such, the Board grants TDIU on an extraschedular basis from August 1, 2006, to April 22, 2013. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.