Citation Nr: 21013027 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 12-28 846 DATE: March 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) from December 10, 2020, is granted. REMANDED Entitlement to a TDIU prior to December 10, 2020, is remanded. FINDINGS OF FACT From December 10, 2020, the Veteran’s service-connected disabilities met the schedular criteria for a TDIU, and the effects of his service-connected disabilities rendered him unemployable. CONCLUSIONS OF LAW The criteria for TDIU from December 10, 2020, have been met. 38 U.S.C. §§ 1155, 5107(b) (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1974 to February 1977, February 1977 to February 1980, and from December 1980 to January 1997. An August 2017 Board decision denied the Veteran’s claim for an increased rating for lumbar facet arthropathy. The Veteran appealed the matter ot the United States Court of Appeals for Veterans Claims (Court). In September 2018, the parties agreed to a Joint Motion for Partial Remand (JMPR). Based on the JMPR, the matter of entitlement to a TDIU was included in the appeal and remanded by the Board in March 2019. See Rice v. Shinseki, 22. Vet. App. 447 (2009). In March 2020, the Board again remanded the matter of entitlement to a TDIU to the agency of original jurisdiction (AOJ) for additional development. The case has since returned to the Board for the purpose of appellate disposition. Entitlement to a TDIU The Veteran contends that he is unable to work as a result of his service-connected disabilities. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the Veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single 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. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. 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). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In order for a veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him or her in a different position than other veterans who meet the basic schedular criteria. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in light of his or her service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 361. In Geib v. Shinseki, 733 F.3d 1350 (2013), the Federal Circuit held that VA's duty to assist did not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities. "Indeed, applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Id. at 1354. In this case, the Veteran is service connected for lumbosacral facet arthropathy, intervertebral disc syndrome (rated as 20 percent disabling prior to May 19, 2016, and 40 percent disabling from May 19, 2016), radiculopathy of the left lower extremity, sciatic nerve (10 percent disabling from May 19, 2016, to December 9, 2020, and as 20 percent disabling from December 10, 2020), radiculopathy of the left lower extremity, femoral nerve (20 percent disabling from December 10, 2020) and hearing loss (noncompensable), status post primary meniscal repair, left knee (10 percent from February 1, 1997), hypertension (10 percent from February 1, 1997), and angle recession glaucoma of the right eye (10 percent from July 12, 2010). His combined rating is 40 percent from July 12, 2010, 60 percent from May 19, 2016, and 70 percent from December 10, 2020. Hence, the Veteran’s meets the schedular requirements for entitlement to a TDIU from December 10, 2020. In August 2020, the Veteran submitted a VA Form 21-8940, Application for TDIU, indicating that he was last employed as a custodian from 1998 to May 31, 2016, and that he became too disabled to work as of that date. His highest gross earnings per month were $2,500 per month. His education level was high school, and he noted that he had no other additional training or education. With respect to the impact of the disabilities on his work, the Veteran reported that he had constant back pain with pain shooting from his back down to his left foot and tingling in his left foot. He had instability when standing, his equilibrium was off, and he would fall. VA treatment records and examination reports prior to May 2016 reflect that the Veteran was dealing with low back, left hip, and left knee pain at work and in the evening, but that he was able to continue his work as a custodian with the post office. In a September 2012 statement, the Veteran’s supervisor reported that, although the Veteran was a dependable worker, he had increased symptoms at work, was absent more frequently and using more FMLA leave. He expressed his belief that it would be difficult for the Veteran to maintain his work standards as his pain progressed. An October 2012 VA physician statement reflects his assessment that the Veteran’s back pain was worsening and limited his activity. He also noted that the Veteran had tried multiple medications and physical therapy without any relief. A May 2016 VA back examination, the Veteran reported that, since his last back exam, the pain had progressed such that it was nearly constant in a moderate to severe level. He also had some radicular pain into the left leg. After every other month, he had back pain such that he had to skip work for 2 to 3 days. During that time, he stretched, used his TENS unit, lidocaine cream, and heating pad, and severely curtailed his activity. At the conclusion of the examination, the examiner opined that the Veteran was only capable of sedentary work. She noted that the Veteran was retiring early from his job as a custodian in a week because he was no longer able to tolerate the low back pain that his work caused. Social Security Administration (SSA) records reflect that the Veteran was determined to be disabled due to disorders of the back (discogenic and degenerative) and hypertension. While the Veteran stated that he became too disabled to work as of May 31, 2016, SSA noted date of disability of October 1, 2018 with indication the date was determined based upon when the disability onset. On VA back examination in December 2020, the examiner indicated that the Veteran’s back condition would interfere with prolonged sitting, standing, walking, bending, turning, lifting, and carrying heavy loads. The evidence discussed above, including examinations and lay statements, supports a finding that it is at least as likely as not that the Veteran is unable to perform work-related tasks due to difficulties with walking, standing, lifting and carrying due to his service-connected back, radiculopathy, and left knee disabilities. As indicated above, the record indicated that the Veteran was having difficulty performing and that his symptom severity increased leading him to stop working in May 2016. The impairments described in these records are incompatible with his previous work history of working as a custodian, which the Board notes was the only reported job the Veteran held since his discharge from service. In addition, the Veteran suffers from additional functional impairment stemming from his service-connected eye disability and hypertension, which the SSA included as a factor in its disability determination. There is no history of non-physical employment, the Veteran is not educated beyond a twelfth-grade level, and there is no other additional education or training. Therefore, resolving all doubt in the Veteran's favor, the Board concludes TDIU is warranted as of the date the Veteran meets the criteria for a schedular TDIU, December 12, 2020. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). REASONS FOR REMAND 1. Entitlement to a TDIU prior to December 10, 2020 The Board notes that the appeals stems from a July 2010 claim for increased for the service-connected back and eye conditions, with the TDIU claim part-and-parcel of the claim for increased rating for a back disability. See Rice, 22. Vet. App. at 447. However, as indicated above, the Veteran does not meet the schedular criteria for entitlement to a TDIU prior to December 10, 2020, even if the Board were to consider some of his service-connected disabilities as affecting the same body system (back/radiculopathy and left knee). See 38 C.F.R. § 4.16. The record does reflect the Veteran stopped working in May 2016, which he reported was due to his back and leg disabilities. He was found to be disabled by SSA as of October 2018 as due to his back and hypertension, which are both service-connected. Moreover, the May 2016 VA back examiner indicated that only sedentary employment would be possible, which is inconsistent with the Veteran’s previous work background with only post-service employment as a custodian. Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). As this is such a case, extraschedular consideration is remanded for referral to the Director of Compensation Service. The matters are REMANDED for the following action: 1. Refer the Veteran's claim for a TDIU for the period prior to December 10, 2020, to VA's Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16(b). A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. E. Wilkerson, 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.