Citation Nr: 21013474 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 09-14 366 DATE: March 9, 2021 ORDERS Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) from January 4, 2008 to January 22, 2013 is granted. Entitlement to an extraschedular TDIU before January 4, 2008 and from January 22, 2013 to November 25, 2018 is denied. FINDINGS OF FACT 1. The Veteran’s service-connected disabilities alone prevented him from securing or following a substantially gainful occupation from January 4, 2008 to January 22, 2013. 2. The Veteran’s service-connected disabilities alone did not prevent him from securing or following a substantially gainful occupation before January 4, 2008, or from January 23, 2013 to November 25, 2018. CONCLUSION OF LAW 1. The criteria for an extraschedular TDIU have been met, only from January 4, 2008 to January 22, 2013. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from January 1986 to February 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2008 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). It is in the Board’s legacy appeal system. Entitlement to a TDIU prior to November 26, 2018 The Veteran is seeking a TDIU before November 26, 2018. He contends that his service-connected back disability alone prevented him from working beginning January 2008. In the alternative, he contends that his combined service-connected disabilities prevented him from working earlier than November 26, 2018, the effective date of his current TDIU. Law VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with their education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. VA can also assign separate ratings for separate periods of time based on facts found, a practice known as “staged” ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). There are two regulatory subsections that allow for a TDIU. The first, called a “schedular TDIU,” is found at 38 C.F.R. § 4.16(a) and requires that certain disability rating percentages be in place. Either the Board or the agency of original jurisdiction (AOJ) can grant a schedular TDIU in the first instance. The second, called an “extraschedular TDIU,” is found at 38 C.F.R. § 4.16(b). It does not have the percentage requirement but cannot be granted by the Board or the AOJ in the first instance. Instead, it must be submitted to VA’s Director, Compensation Service in the first instance. 38 C.F.R. § 4.16(b). The schedular TDIU subsection provides that a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the above purpose of meeting the above rating requirement for a single disability, 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. Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. Id. Marginal employment generally shall be deemed to exist when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. The extraschedular subsection explains that it is the established policy of the Department of Veterans Affairs 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. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). The rating board will include a full statement as to the veteran’s service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board’s determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board “must provide adequate reasons or basis for deviating from its earlier referral decision.” See Ray v. Wilkie, 31 Vet. App. 58 (2019). Initially, the Board reflects that the Veteran’s service-connected disabilities were evaluated as follows throughout the appeal period: Degenerative disc disease, degenerative arthritis, and spinal stenosis of lumbar spine (back disability) – 10 percent, left knee arthritis – 10 percent, left lower extremity (LLE) femoral nerve radiculopathy – 10 percent; back disability increased to 20 percent, combined rating increased to 40 percent effective September 22, 2011; service connection granted effective April 24, 2018 for tinnitus – 10 percent, LLE sciatic nerve radiculopathy – 10, and scar – 0 percent, combined rating increased to 50 percent; back disability increased to 40 percent, service connection granted for right lower extremity (RLE) sciatic nerve radiculopathy – 10 percent, combined rating increased to 70 percent effective November 26, 2018. The Veteran’s combined disability evaluation was 30 percent before September 22, 2011; 40 percent from September 22, 2011 through April 23, 2018; 50 percent from April 24, 2018 through November 25, 2018; and now, beginning November 26, 2018, it is 70 percent disabling. Consequently, the Board finds that the Veteran does not meet the schedular criteria for TDIU before November 26, 2018. See 38 C.F.R. § 4.16(a). The Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim was referred to VA’s Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001). In this case, the Director rendered an opinion regarding entitlement to extraschedular TDIU under 38 C.F.R. § 4.16(b) in November 2020. The Board thus has jurisdiction to decide the issue of entitlement to TDIU under § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233 (2015). Evidence The Veteran’s work history, as compiled from his June 2008 application for TDIU, Social Security Administration (SSA) medical records and disability applications, and VA medical and vocational rehabilitation records, is as follows: from January 2001 to January 2008 the Veteran worked full time for several companies, alternating positions as a truck driver and an auto mechanic. The Veteran reported no work and no income for the 2008 through 2011 tax years. An August 2010 letter from the Veteran’s treating doctor to the NY Worker’s Compensation Board mentioned the Veteran was looking for “light work” such as driving a dump truck, but it does not mention whether he was successful in obtaining that work. In November 2015 he told VA examiners that he was unable to work at all from 2008 to 2012 because of his back disability, and that he was still only able to work as a “no touch freight” truck driver because of his restriction against lifting over 10 lbs. He stated he was working part time as a dump truck driver, generally working eight hour shifts twice a week, and that he couldn’t do full time because it aggravated his back pain and left knee pain. He stated that he felt three days per week was his limit due to pain, and even then, he sometimes has to stop and take a break with his legs elevated. In a July 2019 SSA benefits application the Veteran stated that he had worked full time as a truck driver from January 2016 to August 2018 and then had to stop because his medical conditions worsened and he couldn’t perform his work duties. The Veteran did not respond to VA’s October 2019 or August 2020 requests for updated employment information. On his application for a TDIU the Veteran listed post high-school education and training including accounting in January 1994, pipe welding from June 1995 to February 1996, auto and diesel repair from March 1996 to February 1997, and truck driver training from March 1997 to June 1997. He applied for VA vocational rehabilitation services in May 2009, November 2012, and November 2014 listing similar information. In January 2008, the Veteran was rated 10 percent disabled by his low back strain when he fell backward out of a work truck and ended up hospitalized for an L3-L4 laminectomy with microdiscectomy. An October 2008 rating decision denied the Veteran a temporary 100 percent rating during his convalescent period after this surgery because it was a work-related accident. However, the Veteran is now service connected for arthritis and stenosis of his lumbar spine as progressions of his originally service-connected low back strain and the Board will consider his back related symptoms as related to his service-connected back disability. In August 2008 VA provided examinations to determine the severity of the Veteran’s back disability and left knee disability. The Veteran reported daily pain, from seven to ten on scale of one to ten, running down the left side of his back to his left knee. Flare-ups lasted twenty to thirty minutes daily. He reported using a cane to walk and only being able to walk five hundred to one thousand feet. On examination he had pain with motion, tenderness, and weakness of the thoracic paraspinal muscles. His lumbar forward flexion was from 0 to 90 degrees with a combined range of motion of 180 degrees. After three repetitions forward flexion was reduced to 60 degrees with a combined range of motion of 150 degrees. The examiner noted the Veteran had been out of work since his January 2008 injury but did not opine as to the functional impact of his back disability on his ability to work. The examiner did not find anything wrong with the Veteran’s left knee on examination but noted the Veteran’s history of LLE sciatic nerve radiculopathy and report of pain and trouble standing for longer than ten or twenty minutes. In April 2009 the Veteran stated that his primary care physician stated that he is unable to work and prescribed prosthetic device for his knee. The Veteran asserted that this and his back disability prevented him from working. Vocational rehabilitation records from June 2009 show that the Veteran’s application was put on hold because his doctor had not released him to work yet so it was not clear what help the program could offer him. In November 2009, in an independent medical opinion for the Veteran’s worker’s compensation case, Dr. W.M. concluded that the Veteran’s back and left knee disabilities would prevent physical labor because of his ten-pound lifting limit and restrictions on walking and standing. However, the examiner concluded that with allowances for switching positions occasionally and avoiding stairs or prolonged walking or standing, the Veteran could still engage in sedentary work. This opinion did not suggest any particular occupation or address the Veteran’s educational history. Records from the SSA show that a private physician, Dr. W.O. noted in May 2011 that the Veteran’s back disability would prevent him from sitting for more than one hour, or standing or walking more than four hours, in an eight-hour workday. He also indicated that the Veteran would need at least two additional unscheduled work breaks during his day and would miss an average of two workdays per month because of his back pain. SSA records also indicated that the Veteran testified he could only sit for a few minutes at a time and could not lift his grandson who weighed only twenty pounds. In December 2011 VA provided an examination to determine the severity of the Veteran’s back disability. On examination the Veteran had forward flexion to 35 degrees with combined range of motion of 120 degrees. He could not perform three repetitions of this test because of pain. Functional loss was caused by pain on movement and less movement than usual. The examiner diagnosed intervertebral disc syndrome (IVDS) and noted the Veteran had between four and six weeks of incapacitating episodes over the previous twelve months. The examiner opined that the Veteran’s back disability caused functional problems with sitting, standing, walking, and bending, but did not elaborate on the extent of these problems. In December 2012 the Veteran applied for VA vocational rehabilitation services and in January 2013 he attended an initial counseling and aptitude testing session. The counselor concluded that the Veteran’s service-connected disabilities prevented him from returning to his previous work as a truck driver and he would need remedial courses to help train for a less physically demanding job. Aptitude testing showed he would likely be able to learn the appropriate skills for sedentary occupations in clerical, administrative, financial, or similar fields. The Veteran did not follow up with his vocational rehabilitation counselor and his claim was suspended. He applied again in November 2014 but then did not appear for his appointment scheduled in December 2014 and did not respond to a letter after the missed appointment. His claim for vocational rehabilitation services was disallowed in December 2014. In November 2015 VA provided examinations to determine the severity of the Veteran’s left knee and lower LLE femoral nerve radiculopathy disabilities. The Veteran reported working part time as a dump truck driver. He stated that using the clutch was increasing his left knee pain. He reported having to stop driving and rest with his legs elevated due to pain. He did not take pain medication as often as he would have liked because he could not be drowsy while driving. The Veteran also reported flare ups of knee pain caused by prolonged sitting, walking, or standing. On examination the Veteran’s left knee had flexion to 110 degrees and extension to 0 degrees with objective signs of pain on movement, pain with weight bearing, tenderness, and crepitus. There was no change after three repetitions. The Veteran’s knee was stable with normal strength. The examiner noted moderate incomplete paralysis of the left femoral nerve. The examiner opined that the Veteran’s left knee disability caused functional problems with prolonged sitting, standing, and walking, which would limit his activities. The examiner did not elaborate as to the extent of this limitation. The examiner did note the Veteran’s statement that he couldn’t work more than three days per week because of his constant back pain which required him to lie down and rest on his side. In June 2018 VA provided examinations to determine the severity of the Veteran’s back, left knee, tinnitus, and bilateral lower extremity radiculopathy disabilities. Regarding his back, the Veteran reported chronic pain at a level of five or six out of ten which caused trouble climbing in and out of his work truck. He reported flare ups about three times daily lasting about two minutes each and consisting of severe back pain. Regarding his LLE sciatic and femoral nerve radiculopathies, the Veteran reported ongoing numbness and tingling in his left leg with intermittent pain since sometime in 2017. Regarding his left knee, the Veteran reported flare ups throughout the day caused by extended sitting. During a flare up he reported a pain level of eight out of ten and lasting for a few minutes each time. On examination the Veteran’s lumbar spine had forward flexion to 40 degrees and a combined range of motion of 140 degrees. After three repetitions forward flexion was reduced to 30 degrees with a combined range of motion of 75 degrees. The Veteran did not have spinal ankylosis. He did have IVDS but without any incapacitating episodes in the past twelve months. The examiner noted no pain on weight bearing, no tenderness, and no guarding or spasms severe enough to affect gait or spinal contour. The examiner observed radicular symptoms including decreased sensation, pain, paresthesias/dysethesias, and numbness in the Veteran’s left leg. The Veteran had normal strength in his back and legs and a normal gait. The Veteran reported intermittent ringing in his ears. The examiner noted that the Veteran’s combined service connected disabilities had caused less than one week of lost work over the past year and opined that they caused poor tolerance for general physical work, especially heavy physical work involving lifting or twisting motions since this would aggravate his low back pain. The examiner also opined that they caused poor tolerance for extended walking, sitting or driving for extended periods of time, which limited the Veteran’s options for many jobs. In November 2018 VA provided an examination to determine the severity of the Veteran’s back disability. The Veteran reported increased numbness, increased popping, decreased ability to walk, and increased stiffness with motion. He reported flare ups of severe back pain about three times daily, each lasting about two minutes. On examination his lumbar forward flexion was from 0 to 40 degrees with a combined range of motion of 140 degrees. After three repetitions forward flexion was reduced to 30 degrees with a combined range of motion of 75 degrees. Pain and fatigue caused functional loss. The Veteran had guarding and muscle spasm, but they did not cause abnormal gait or spinal contour. The Veteran’s IVDS had not resulted in incapacitating episodes over the previous twelve months. The examiner opined that the Veteran could still perform sedentary work. In October 2019, VA sent the Veteran a letter requesting more information relevant to his claim for an extraschedular TDIU. No response was received. In August 2020, VA sent the Veteran a second request, this time explicitly requesting an updated employment history. No response was received. Application The Veteran’s treatment records, VA examinations, state and federal disability records, and work history show that his service-connected disabilities and their combined effect on his ability to work have varied in severity over the period on appeal. Before his January 2008 injury the Veteran had been working full time and was therefore clearly not prevented from working by his service-connected disabilities. From January 2016 to August 2018 the Veteran also reported working full time, demonstrating that during this period he was not prevented from working by his service-connected disabilities. The severity of the Veteran’s service-connected disabilities during the period from the Veteran’s injury in January 2008 until he returned to full time work in January 2016 is less clear. The reports and opinions by Dr. W.M. in November 2009 and Dr. W.O. in April 2010, consistent with the VA examination results of August 2008, are sufficient to show that from the time of his January 2008 injury the Veteran’s service-connected back disability and LLE femoral nerve radiculopathy prevented him from performing physical labor. These evaluations did not rule out sedentary employment with accommodations such as lifting restrictions, extra breaks, and the ability to switch position as needed. However, the Board considers the January 2013 vocational rehabilitation evaluation as evidence that the Veteran did not have the educational background to perform this type of work and would require remedial classes to become qualified. The Board also considers the Veteran’s long history of consistent gainful employment before a four-year period of reporting no income as evidence that the Veteran was unable to work from January 2008 until at least the end of December 2012. Based on all of the above, the Board finds that from his injury on January 4, 2008 to his vocational rehabilitation evaluation on January 22, 2013 the Veteran’s service-connected disabilities alone prevented him from securing or following a substantially gainful occupation. In June 2009, the Veteran’s vocational rehabilitation application was put on hold pending approval from the Veteran’s doctors for him to return to some form of employment. When he reapplied and was evaluated for vocational rehabilitation services in January 2013 no such restriction was mentioned. From the time of his January 2013 vocational rehabilitation evaluation the Veteran had access to services to assist him in training and applying for sedentary employment, although he did not follow up with this opportunity. By November 2015 the Veteran reported at least part time employment as a dump truck driver. As mentioned above, by January 2016 he was again employed full-time. The above evidence demonstrates that the impact of the Veteran’s service-connected disabilities on his ability to work had lessened by January 2013 at least to the point of making an evaluation for vocational rehabilitation practical to complete. After his January 2013 evaluation the Veteran had access to employment training if he wished to pursue sedentary employment. The Veteran’s medical records and SSA application show that he was working as a driver for an unspecified amount of time between January 2013 and January 2016. Considering the above evidence and the lack of any clarifying response from the Veteran after two requests from VA, the Board finds that the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities alone prevented him from securing or following a substantially gainful occupation from January 22, 2013 through August 12, 2018. After a period of full-time employment as a truck driver, the Veteran reported his last date of work as August 12, 2018. In a July 2019 SSA benefits application he stated that he stopped working because his medical conditions worsened and he could not perform his duties. He did not specify which of his many medical conditions had worsened. In August 2018 the Veteran had been granted service connection for his back disability (rated 20 percent), left knee arthritis, LLE femoral nerve radiculopathy, LLE sciatic nerve radiculopathy, a scar, and tinnitus for a combined disability rating of 50 percent. The Board notes that the Veteran’s back was examined in June 2018 and the results did not justify increasing his 20 percent disability rating. It was not until November 26, 2018 that the rating for the Veteran’s back disability increased to 40 percent and he was granted service connection for RLE sciatic nerve radiculopathy, as well as a schedular TDIU based on his combined rating of 70 percent with at least one disability rated at 40 percent or higher. While the evidence shows that as of November 26, 2018 the Veteran’s service-connected disabilities alone prevented the Veteran from working, the higher rating for the Veteran’s back and the effects of RLE sciatic nerve radiculopathy cannot be considered before that date. See Delrio v. Wilkie, 32 Vet. App. 232 (2019) (The effective date for a TDIU cannot be earlier than the effective date of service connection for the underlying disability or disabilities upon which the TDIU is based.). The Board therefore finds that from August 13, 2018 to November 25, 2018 the preponderance of the evidence shows that the Veteran’s service-connected disabilities alone did not prevent him from securing or following a substantially gainful occupation. In sum, for the period before November 26, 2018, the preponderance of the evidence shows that the Veteran’s service-connected disabilities prevented him from securing or following a substantially gainful occupation only from January 4, 2008 to January 22, 2013. The Veteran’s claim for an extraschedular TDIU is therefore granted from January 4, 2008 to January 22, 2013 but not before or after that period. In making this staged rating, the Board is cognizant of its previous decision to refer this case for extraschedular consideration which requires an explanation if the Board later decides to deny the Veteran’s claim. See Ray v. Wilkie, 31 Vet. App. 58 (2019). First, the Board notes that the opinion provided by the Director, Compensation Service, while not binding on the Board, was entirely negative and recommended against granting any portion of the Veteran’s claim based on the relatively physically less demanding nature of sedentary work that the Veteran could have attempted to perform. Next, when the Board remanded this issue in April 2019 there had been no opportunity to review the Veteran’s July 2019 statement that he had been working full-time as a truck driver for eighteen months during the period when he was claiming an extraschedular TDIU. Finally, in addition to obtaining an opinion from the Director, Compensation Service, the April 2019 remand was intended to allow the Veteran an opportunity to offer information in support of his claim. The Veteran’s lack of response to VA’s letters of October 2019 and August 2020 leaves the Board with the only new information of record, the Director’s opinion and the Veteran’s employment information, both adverse to the Veteran’s claim. For these reasons, despite finding in April 2019 that there was enough evidence in support of the Veteran’s claim to justify seeking the Director’s opinion, the Board finds that outside of the period from January 4, 2008 to January 22, 2013 the preponderance of the evidence was ultimately against   granting the Veteran’s claim. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Zimmerman 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.