Citation Nr: 21012612 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 16-00 902 DATE: March 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) from April 20, 2015, is granted. REMANDED Entitlement to a TDIU prior to April 20, 2015, is remanded. FINDING OF FACT The preponderance of the evidence indicates that the Veteran’s service-connected disabilities have rendered him unable to obtain or maintain substantially gainful employment since April 20, 2015. CONCLUSION OF LAW Since April 20, 2015, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5103(a), 5107(b); 38 C.F.R. §§ 3.102, 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1982 to December 1987. This appeal arises from March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that, in pertinent part, denied entitlement to a TDIU. Entitlement to a TDIU from April 20, 2015, is granted. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more, or as a result of 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. § 4.16(a). Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). To meet the requirement of one 60 percent disability or one 40 percent disability, the following disabilities will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment may also exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16. The term “substantially gainful occupation” is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing a veteran’s ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran’s history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual. Id. Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity. Id. Here, at the time of the March 2015 rating decision, the Veteran had one service-connected disability, a back disability (degenerative disc disease (DDD) of L2-3) rated as 20 percent disabling effective February 28, 2012. The record shows that the TDIU claim was received on February 28, 2012. See November 2015 Statement of the Case. The Board notes that, since the March 2015 rating decision, the RO has issued several rating decisions affecting the Veteran’s combined disability rating: an additional March 2015 decision granting service connection for cervical spine disability (C5-6, C6-7 discectomy, fusion with plating due to DDD) rated as 20 percent disabling effective February 28, 2012; a February 2016 decision granting service connection for depression, rated as 70 percent disabling effective April 20, 2015; an August 2020 decision increasing the back disability rating from 20 percent to 40 percent effective July 1, 2020, and granting service connection for bilateral leg radiculopathy, each leg rated as 10 percent disabling and both effective July 1, 2020; and an October 2020 decision implementing an October 2020 Board decision that found the 40 percent rating for the back disability was warranted from February 20, 2015. Thus, the Veteran’s combined disability rating is 40 percent from February 28, 2012; 50 percent from February 20, 2015; and 90 percent from April 20, 2015. Therefore, since April 20, 2015, the Veteran meets the initial eligibility requirements to receive TDIU benefits, as his service-connected depression has been rated at 60 percent or more since that date. See 38 C.F.R. § 4.16(a). The Veteran’s VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), received in March 2015, shows that the Veteran finished two years of college and has no other education or training. His past employment involved work as an industrial mechanic. The Veteran also indicated on this form that his service-connected disabilities affected his full-time employment since January 2012, which is the date he indicated that he last worked full-time. In addition to lay statements, the evidence for consideration includes Social Security Administration (SSA) records, VA examinations and treatment records, and private treatment records and opinions. The evidence includes a November 20, 2012, SSA decision, and in an April 2017 statement, the Veteran’s representative contends that this decision supports the Veteran’s TDIU claim. In that decision, SSA found that the Veteran had been disabled since the time he filed an SSA claim in April 2012, at least in part due to the Veteran’s residual functional capacity affected by his back disability. Although the Board is not bound by an SSA determination, the determination is relevant to the Veteran’s TDIU claim. See generally Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Considering the Veteran’s residual functional capacity as one factor, SSA found that there were no jobs that exist in significant numbers in the national economy that the Veteran could perform. SSA considered the Veteran’s back and cervical disabilities in making such determination. Additionally, the evidence includes records received in April 2017 from private physicians, B.P., D.O., and J.M., M.D. In a June 2012 treatment record, Dr. B.P. noted that the Veteran had chronic back pain causing significant limitations, including no standing greater than an hour, no lifting greater than ten pounds, no carrying greater than ten pounds, and limitations in bending, twisting, and overhead work. Dr. B.P. opined that he believed the limitations would be permanent. In December 2016, Dr. J.G. considered the Veteran’s back and cervical disabilities and depression when concluding that the Veteran has pain disabling to the extent that it would prevent him from working full-time at even a sedentary position and that pain and/or side effects of medication for his disabilities have severe effects that preclude attention and concentration required for even simple, unskilled work tasks. VA spine examinations (conducted in May 2012, February 2015, and July 2020) and VA treatment records generally support the private physicians’ notations of pain and resulting limitations in movement, related to his back and cervical spine disabilities. Furthermore, a psychologist opined, in a January 2016 VA examination report, that the Veteran’s service-connected depression alone causes occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. In consideration of this evidence, the Board finds that the Veteran’s service-connected disabilities have prevented him from securing and following substantially gainful employment. The evidence shows deficiencies in not only the Veteran’s physical abilities, but also mental factors affected by pain and medications related to his service-connected disabilities. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Significantly, Dr. J.G. opined that the Veteran’s physical pain from his back and neck disabilities would prevent him from full-time work. Furthermore, the Veteran has mental limitations resulting from his service-connected depression that also affect his ability to work. The rest of the evidence, to include other private medical records, VA examinations and treatment reports, and SSA findings, bolster the Veteran’s claim that his service-connected disabilities prevent him working full-time. Therefore, because the evidence is, at the least, in equipoise regarding whether the Veteran’s service-connected disabilities have resulted in his inability to secure and maintain a substantially gainful occupation, entitlement to a TDIU is warranted since April 20, 2015. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to a TDIU prior to April 20, 2015, is remanded. As previously mentioned, at the time of the March 2015 rating decision, the Veteran had one service-connected disability, a back disability (degenerative disc disease of L2-3) rated as 20 percent disabling effective February 28, 2012. The record shows that the TDIU claim was received on February 28, 2012. See November 2015 Statement of the Case. The Veteran’s combined disability rating is 40 percent from February 28, 2012; 50 percent from February 20, 2015, to April 19, 2015. Thus, prior to April 20, 2015, the Veteran did not meet the threshold schedular criteria for TDIU. If a claimant does not meet the threshold criteria, a TDIU may still be assigned but on a different basis. 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. 38 C.F.R. § 38 C.F.R. §4.16(b). The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director, Compensation Service, for extraschedular consideration. Id. The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the Board’s sole inquiry is whether referral for extraschedular consideration is warranted in light of the evidence showing the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. In a statement received in April 2017, the Veteran’s representative acknowledges that the Veteran’s combined disability rating does not meet the schedular requirement prior to April 2015. However, the representative contends that sufficient evidence exists to warrant referral to the Director, Compensation Service, for extraschedular consideration of a TDIU for the period prior to April 2015. The Veteran asserted in a May 2012 statement that his back pain had worsened to a point that he cannot work. Additionally, as discussed above, the SSA found in a November 20, 2012, decision that the Veteran had been disabled since the time he filed an SSA claim in April 2012, at least in part due to the Veteran’s residual functional capacity affected by his back and cervical disabilities. Further, the evidence includes multiple private opinions indicating that the Veteran’s service-connected back and/or cervical disabilities may have prevented substantially gainful employment prior to April 20, 2015. See, e.g., July 27, 2011, J.Z., M.D., Letter (opining that it would probably be better for the Veteran not to work); June 20, 2012, B.P., D.O., Treatment Notes (showing that the Veteran’s chronic back pain causes permanent, significant limitations). Therefore, the Board finds the evidence of record provides a foundational basis to refer the matter for extraschedular consideration because the evidence suggests that the Veteran’s service-connected back and cervical disabilities (with a combined disability rating of 40 percent effective February 28, 2012) may have prevented substantially gainful employment prior to April 20, 2015. The matters are REMANDED for the following action: 1. Obtain any additional VA treatment records, to include VA treatment records from September 2020 to the present. 2. For the period prior to April 20, 2015, refer the Veteran’s claim to VA’s Director of Compensation for consideration of entitlement to a TDIU on an extraschedular basis. 3. After completing the above development and any other additional development deemed necessary, readjudicate the TDIU issue. Shereen M. Marcus Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Santiago, 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.