Citation Nr: 21015959 Decision Date: 03/18/21 Archive Date: 03/18/21 DOCKET NO. 12-12 567 DATE: March 18, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis, is denied. REMANDED Entitlement to nonservice-connected pension benefits is remanded. FINDING OF FACT Throughout the appeal period, the Veteran did not meet the schedular criteria for TDIU, and the preponderance of the evidence is against finding that the Veteran’s service-connected disabilities alone present an exceptional or unusual disability picture productive of marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for an award of a TDIU due to service-connected disabilities, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1101, 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1973 to October 1976. These matters come to the Board of Veterans’ Appeals (Board) from March 2010 and October 2013 rating decisions which, in pertinent part, denied entitlement to nonservice-connected pension benefits and TDIU. In June 2017 and March 2020, the Board remanded the matters as intertwined with pending increased rating and service connection claims and for further development, to include obtaining information on the Veteran’s income and for referral of TDIU to the Director of Compensation and Pension Service. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities, to include on an extraschedular basis. The Veteran asserts entitlement to a TDIU, to include on an extraschedular basis. Based on the evidence of record, the Board finds that a grant of extraschedular TDIU is not warranted. The law provides that a TDIU may be granted upon a showing that the veteran is unable to secure or follow a substantially gainful occupation due solely to impairment resulting from his service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. 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 his age or the impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. To qualify for a total rating for compensation purposes, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation as a result of his or his service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more. 38 C.F.R. § 4.16(a). Where a veteran does not meet the percentage evaluation requirements under 4.16(a), he still may be deemed totally disabled on an extraschedular basis under 38 C.F.R. § 4.16(b) when the evidence nonetheless indicates that the veteran is unemployable by reason of his service-connected disabilities. Under such circumstance the matter is referred to the Director of the Compensation and Pension Service for consideration. Id.; see also Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995). Extraschedular TDIU consideration requires contemplation of the following factors: severity of 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). Although the Board does not have the authority to award an extraschedular TDIU prior to referral to the Director, the Board has jurisdiction to review and award extraschedular ratings in claims that have been denied by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The Veteran is service-connected for lumbosacral strain with degenerative arthritis at 10 percent from August 24, 2009, at 20 percent from March 1, 2011, and at 40 percent from July 14, 2017; for right lower extremity radiculopathy of the sciatic nerve at 10 percent from August 24, 2009; and for right lower extremity radiculopathy of the femoral nerve at 10 percent from August 24, 2009. The Veteran’s combined disability rating is 30 percent from August 24, 2009, 40 percent from March 1, 2011, and 50 percent from July 14, 2017. Therefore, the Veteran does not meet the schedular criteria for TDIU and his claim must be considered under the criteria of 38 C.F.R. § 4.16(b). Because the Director has already denied an extraschedular TDIU under 38 C.F.R. § 4.16(b), the Board may consider an appeal for an extraschedular TDIU. Turning to the evidence of record, on his August 2009 VA Form 21-526 (Veteran’s Application for Compensation and/or Pension), the Veteran reported two years of college. An October 2009 VA examination report reflects the Veteran reported working as a truck driver until 2003 when he developed right knee pain, as well as right wrist pain, and could not steer a vehicle or sit for long periods of time. He reported low back pain on and off. He ambulated with a cane for his right knee pain. The examiner indicated that his disabilities may prevent him from driving for long distances, but that he was able to perform desk work. In a September 2010 letter, the Veteran’s representative asserted that the Veteran was unable to work as a truck driver due to knee and back pain and that while he had a high school diploma and some college education, his past work experience was as a truck driver and he did not have a degree or certification that would provide for direct entry into skilled work. A November 2010 VA examination report reflects the Veteran reported using a cane for stability and could walk for a block before having to rest. He reported he stopped driving a truck in 2009 due to back and leg pain and that he could only do very limited work around his home. Social Security Administration (SSA) records reflect the Veteran is in receipt of disability benefits from May 2011, with a primary diagnosis of right wrist osteoarthritis and a secondary diagnosis of lumbosacral strain. A May 2011 SSA orthopedic examination noted chief complaints of low back and right knee pain, and the Veteran reported he could not stand for more than five minutes or sit longer than 10 to 15 minutes without having severe back pain. He also reported that his right knee would give out requiring him to use a cane. However, the examiner noted the Veteran ambulated well without his cane and the evidence upon examination did not confirm his stated level of back pain. The Veteran also complained of right wrist carpal tunnel syndrome and arthritis for which he wore a wrist brace. It was additionally noted that the Veteran reported he did not see well enough to read despite wearing glasses. The Board notes that the Veteran is not service-connected for his right hand disability or his right knee disability. The Board further notes that while findings from SSA constitute probative evidence with respect to a TDIU claim, they are not dispositive or altogether binding on VA. SSA’s legal criteria for assessing disability for Social Security benefits purposes differs in important respects from VA’s own framework for determining entitlement to TDIU. SSA bases disability on a claimant’s residual functional capacity, and whether there is substantial gainful activity that could be performed with that residual functional capacity. A VA claim for a TDIU focuses on unemployability based on impairments caused only by service-connected disabilities. Also, unlike SSA, VA does not consider age in making its determination. A June 2012 VA examination report reflects the Veteran reported daily low back pain that prevented him from driving a truck. Upon examination, the examiner found pain on movement, but that his treatment records showed only rare complaints of back pain, most recently in 2010, and that a May 2010 imaging study of his back was normal. The examiner indicated that the Veteran’s back pain was most likely musculoskeletal and would only restrict him from strenuous occupations that required heavy lifting or frequent bending/stooping; otherwise, his back disability would not have any significant occupational limitations. A July 2017 VA examination report reflects the Veteran reported low back pain that had been worsening over time. He reported stiffness, difficulty straightening in the morning, and difficulty sitting for prolonged periods. The Veteran self-treated with over-the-counter medication but denied any recent physical therapy or chiropractic treatments, injections, or surgery. The Veteran reported flare-ups of back pain both with and without increased activity and radiation of pain into his right leg for two years. The examiner noted the Veteran completed high school and some college and retired due to his back condition. The examiner noted the Veteran was limited in sitting, standing, walking, and lifting heavy loads and that his lumbar spine condition would have a moderate adverse impact on his functional capacity. While the examiner noted a sedentary position would be difficult, he indicated the Veteran could do so if he could take breaks during the day. January and May 2019 VA examination reports reflect the Veteran reported constant low back pain that prevented him from bending over and sitting or standing for long periods of time. He reported intermittent numbness and tingling to his left lower extremity and that he treated his pain with over-the-counter medication. He reported that his back would lock up and back pain affected his sleep. The Veteran also reported constant use of a cane and occasional use of a brace for his back. Imaging studies revealed mild degenerative changes at L5-S1. The examiner noted the Veteran would be limited in bending, stooping, pushing, pulling, carrying, and lifting moderate objects due to lumbar strain, arthritis, and radiculopathy. In a March 2019 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability), the Veteran reported he last worked in August 2009 and that his bad back, right hand carpal tunnel syndrome, and hepatitis C prevented him from securing or following any substantially gainful occupation. The Veteran indicated he had four years of high school but did not attend college. The Board notes that the Veteran is not service-connected for his right hand disability or hepatitis C. A January 2021 opinion from the Director of Compensation Service noted that the Veteran’s educational level was called into question. Specifically, while the Veteran reported having a high school education on his March 2019 VA Form 21-8940, VA treatment records and examination reports show the Veteran had some college education. After reviewing the Veteran’s claims file and noting his medical history, including that as discussed above, the Director indicated that it was clear the Veteran would be hampered in labor-intensive positions by his service-connected back disability. The Director noted, however, that a shift in the American workplace had occurred over the last several decades to less strenuous jobs due to increased reliance on computers, the internet, and email, and that there were many jobs that required only light activity and for which a person with a high school education would be capable of performing. As it pertained to the Veteran’s back disability, as long as the Veteran could sit or stand as needed, he could be expected to handle such positions. The Director noted that the use of mitigating adaptive equipment such as a sit/stand desk could be used and that use of such would not be unreasonable or mean that the Veteran’s disability was so unique or unusual as to render the schedular rating criteria inadequate to describe his symptoms. The examiner stressed that the ultimate question is whether the Veteran is incapable of performing the physical and mental acts required by employment, not whether or not he can find employment. Careful consideration was given to the Veteran’s education, training, and work history, but the Director determined that the overall evidence failed to support the contention that any of the Veteran’s service-connected disabilities or a combination of the effects of those disabilities, supported an exceptional situation that would prevent the Veteran from gainful employment. The Board also finds that the evidence weighs against a finding that the Veteran’s service-connected disabilities alone rendered him unemployable or unable to secure and follow a substantially gainful occupation. The evidence of record documents numerous statements by the Veteran that he is unable to work in his previous occupation as a truck driver due to his back, right wrist, right knee, and hepatitis C disabilities. SSA records reflect that the Veteran reported his back, wrist, and knees prevented him from working, and he was granted SSA disability benefits primarily due to his wrist disability. However, the Board emphasizes that the Veteran is only service-connected for a lumbosacral spine disability and associated neurologic manifestations. He is not service-connected for his wrist, knees, or hepatitis C. The Board finds the preponderance of the evidence record does not establish that the Veteran had deficiencies in education, training, or prior work experience that would prevent him from obtaining and maintaining at least simple, unskilled sedentary employment, as the Veteran is in receipt of a high school diploma and has had some college education. The Board further finds that the preponderance of the evidence does not show that the Veteran’s service-connected disabilities alone would prevent him from sedentary employment. The evidence of record shows that while the Veteran reported constant back pain, the Veteran could still perform jobs that would allow for him to sit, stand, or change position in his chair as needed. Here, the objective medical evidence of record, including VA and SSA musculoskeletal examinations, does not reflect that the Veteran’s service-connected lumbosacral spine and associated neurologic manifestations alone rendered him unable to perform sedentary employment. SSA records show it was the Veteran’s service-connected and nonservice-connected disabilities combined that made it difficult to work. However, even in combination, the Board notes that an SSA finding concluded that the Veteran’s alleged limitations were not supported by the evidence of record. While the Veteran reported constant pain in his back, the evidence does not establish frequent hospitalizations for his service-connected lumbosacral spine disability during the appeal period or other marked interference with employment required for an extraschedular TDIU under 38 C.F.R. § 4.16(b). The Board acknowledges that the Veteran experienced some limitation as a result of his service-connected disabilities, especially as it pertains to more strenuous occupations. However, the totality of the evidence weighs against the claim and rather shows that, when considering only his symptoms from his service-connected lumbosacral spine disability and associated neurologic manifestations, his symptoms merely impaired his ability to work, and such impairment is already explicitly contemplated by the criteria for his thoracolumbar spine ratings. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran’s service-connected disabilities alone rendered him unemployable or unable to secure and follow a substantially gainful occupation at any point during the appeal period. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable, and the claim is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). REASONS FOR REMAND Entitlement to nonservice-connected pension benefits is remanded. The Board cannot make a fully-informed decision on the issue of entitlement to nonservice-connected pension benefits at this time. The Board remanded the claim in June 2017 to obtain information regarding the Veteran’s net worth, income, and medical expenses from August 2009 to the present. In March 2019, the Veteran submitted information on his income from 2009. A December 2019 rating decision codesheet reflects that SSA determined the Veteran was disabled as of April 2009 and met the basic eligibility criteria for pension from August 2009. The note directed a grant of pension benefits and to calculate the Veteran’s pension benefits from August 24, 2009. The issue of pension benefits was not included on the December 2019 supplemental statement of the case (SSOC), nor had VA adjudicated the Veteran’s pension benefits as noted in the December 2019 rating decision codesheet. Thus, in a March 2020 decision, the Board remanded the issue for the issuance of a SSOC. In an April 2020 letter to the Veteran, VA noted the March 2019 information provided by the Veteran was incomplete and requested he provide additional information. In a January 2021 SSOC, VA noted the Veteran had not responded to the April 2020 letter and had attempted to contact the Veteran numerous times via telephone to obtain the information. VA continued to deny pension benefits and returned the issue to the Board. Upon review of the evidence of record, the Board notes that VA only sent the Veteran one letter requesting additional information on the Veteran’s income after the December 2019 rating decision codesheet. Furthermore, despite VA stating in the SSOC stating that VA attempted to contact the Veteran numerous times via telephone, there is no documentation of this in the Veteran’s claims file. As such, the Board finds that a remand is necessary to give the Veteran an additional opportunity to provide information on his net worth, income, and medical expenses from August 2009 to the present.   The matter is REMANDED for the following actions: 1. Contact the Veteran and request he provide updated and complete information regarding his net worth, income, and medical expenses from August 2009 to the present. Document all requests made, including by telephone, and responses received in the Veteran’s claims file. Thereafter, to the extent possible, calculate the Veteran’s countable income for each year from August 2009 to the present and ascertain whether any verified expense or exclusion during each 12-month annualized period reduced the Veteran’s countable income for any such 12-month period. In doing so, VA should detail the methodology used to do so and note if each verified expense is a one-time expense or recurring expense. 2. After completing the above, and any other development as may be indicated, the Veteran’s claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). (Continued on next page)   An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.