Citation Nr: 21016184 Decision Date: 03/22/21 Archive Date: 03/22/21 DOCKET NO. 14-04 091 DATE: March 22, 2021 ORDER Entitlement to total disability based on individual unemployability (TDIU) on an extraschedular basis is granted from December 20, 2010. REMANDED Entitlement to special monthly compensation based on the need for aid and attendance is remanded. FINDING OF FACT Taken in the light most favorable to the Veteran, the evidence shows that her service-connected disabilities have rendered her unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW Effective December 20, 2010, the criteria for entitlement to extraschedular TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 1990 to March 1994. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). By way of procedural background, this matter has been before the Board numerous times. Most recently, the Board remanded the Veteran’s claim for TDIU for referral to the Director, Compensation Service, for extraschedular consideration in April 2020. After this development occurred, the RO continued the denial of the Veteran’s claim for TDIU in a December 2020 supplemental statement of the case. The matter now returns to the Board. The Board notes that entitlement to a higher rate of disability compensation, referred to as “special monthly compensation” (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). SMC is available if a veteran, as a result of service-connected disabilities, is permanently bedridden or so helpless as to require regular aid and attendance of another person. 38 U.S.C. § 1141(l); 38 C.F.R. §§ 3.350(b), 3.352(a). SMC based on housebound status is available if (1) a veteran has a single service-connected disability rated at 100 percent and other service-connected disabilities that are separate and distinct from that disability that are rated at a combined disability rating of 60 percent or higher, or (2) as a result of a single-service connected disability rated as 100 percent disabling, she is permanently and substantially confined to her place of residence and the immediate premises. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.305(i). Here, the Veteran does not have a single disability rated at 100 percent with an additional disability rated at 60 percent or more, even when considering TDIU, which is granted herein. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i); Bradley v. Peake, 22 Vet. App. 280 (2008); Buie v. Shinseki, 24 Vet. App. 242 (2010). As such, entitlement to SMC at the housebound rate is not raised by the record. However, the evidence from shortly before or during the period on appeal suggests that the Veteran has required the regular aid and attendance of another. See, e.g., January 2019 VA Examination (reflecting that she is unable to walk for more than 15 minutes or drive due to her back pain); September 2016 VA Primary Care Note (indicating that she has severe chronic low back pain affecting her lifestyle and her ability to perform activities of daily living); May 2009 VA Social Work Inpatient Note (noting that her daughter had to drop out of school to take care of her after she stopped working). As such, the Board has inferred the issue of entitlement to SMC based on aid and attendance. This issue will be addressed in the remand portion of the decision. Entitlement to extraschedular TDIU Generally, the Veteran asserts that she is entitled to extraschedular TDIU throughout the appeal period because her service-connected low back disability and associated radiculopathy in her bilateral lower extremities prevent her from working. More specifically, she reported a history of work in retail, food service, and customer service positions until becoming too disabled to work in approximately July 2008, when she had to cut back her hours due to back pain. Although she indicated that she had completed two years of college, she primarily worked as a waitress after being discharged from the military. TDIU 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Disabilities of one or both upper extremities or both lower extremities, including the bilateral factor, disabilities resulting from a common etiology or a single accident, and disabilities affecting a single body system will be considered as one disability for TDIU purposes. 38 C.F.R. § 4.16(a). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356 (1991). Although the Board must fully consider the “effect of combinations of disability” in its determination, “neither the statute nor the relevant regulations require the combined effect to be assessed by a medical expert.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Indeed, the regulation places responsibility for the ultimate determination of unemployability on the Board or rating agency, not a medical examiner. Id. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When all the evidence is assembled, VA must determine whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). As a preliminary matter, the Veteran is service connected for a low back disability and radiculopathy of the bilateral lower extremities from December 20, 2010 (i.e., the beginning of the appeal period). Her disabilities are considered one disability, as they arise from a common etiology. Nonetheless, her combined disability rating of 50 percent does not satisfy the schedular criteria for consideration of TDIU on a schedular basis under 38 C.F.R. § 4.16(a). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Instead, VA is required to submit the case to the Director, Compensation Service, for consideration of “extraschedular” entitlement to TDIU. Here, such referral was made in October 2020. In the referral memorandum, VA recommended granting extraschedular TDIU. However, the Director found that extraschedular TDIU was not warranted in a December 2020 advisory opinion. Nonetheless, the Board is not bound by the Director’s decision. Having carefully considered the evidence, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran is essentially unemployable because of her service-connected disabilities. Generally, the record reflects that the Veteran has suffered from longstanding chronic back pain due to degenerative disc disease in her spine. As set forth in September 2014 correspondence from her representative, her back pain is not merely subjective: objective medical testing has shown nerve root impingement and irritation leading to radiculopathy. Although she has undergone extensive treatment for her low back pain, including treatment with strong narcotic pain medications, this treatment has not provided relief. She also experiences pain in the buttocks and lateral pelvis, intermittent shooting pain in her legs with prolonged standing, and numbness. In addition, she has endorsed difficulty performing all postural activities, such as bending, twisting, or climbing stairs. Her representative has argued that because of her low back condition, she cannot engage in prolonged standing, walking, or lifting, which were all duties of her previous jobs as a waitress and in retail and sales. Moreover, because she cannot sit for prolonged periods without pain due to her disability, her representative has argued that she cannot perform duties required of full-time sedentary work. The Veteran has been afforded multiple VA examinations throughout the period on appeal. These examinations generally support her contentions that her service-connected low back disability and radiculopathy have prevented her from finding and maintaining substantially gainful employment. For instance, at a March 2010 VA examination that occurred shortly before the beginning of the period on appeal, she reported that the pain, numbness, and weakness in her legs was aggravated by prolonged standing or sitting. Additionally, she reported that she had been a server before quitting her job in 2008 due to her back pain. She also told the VA examiner that she had trouble sleeping at night because her hips would go numb, and that she has difficulty with housework when standing for long periods of time. At a January 2011 VA examination, the Veteran again reported that she had constant low back pain that radiated down her bilateral lower extremities. She told the examiner that she was unemployed after quitting a waitressing job due to sciatic nerve pain. Similarly, at an August 2014 VA examination, the Veteran endorsed low back pain that radiated to the lower thoracic spine that impacted her ability to work. She explained that she had been a waitress for many years. The August 2014 VA examiner noted that she could not stand or sit for any length of time, which made employment “extremely difficult.” However, the August 2014 VA examiner also stated that her disability should not preclude sedentary employment because she could “work from home.” The Board acknowledges the examiner’s opinion but notes that it seems to disregard the Veteran’s educational history, as well as assume that future employers would grant her considerable freedom and flexibility to accommodate her disabilities. As such, the August 2014 VA examiner’s opinion is of limited probative value. At a June 2019 VA examination, on the other hand, the Veteran reported various limitations, such as being unable to walk more than 15 minutes, stand in one position more than one minute, sit in one position for more than two minutes, bend or twist her back, push, pull, walk upstairs or downstairs, or lift more than 10 pounds. She also indicated that she could not run. These statements are highly probative with respect to whether she would be able to secure and maintain work, including work that is not physically demanding. The Board has also considered a private vocational rehabilitation report submitted by W.S., a rehabilitation counselor, in April 2014. The introduction to the report indicates that W.S. conducted an interview with the Veteran and an assessment of her vocational abilities, as well as reviewed her extensive VA treatment records and private medical records, prior to authoring his report. The report provides a comprehensive overview of the Veteran’s medical history, her work history and vocational profile, and an analysis and opinion on her level of disability. Relevantly, W.S. indicated that the Veteran had a high school education and an incomplete college education. She had been unable to utilize any of her incomplete training to work in a specific occupation but instead had worked in entry-level positions as a retail salesclerk, cashier, and waitress. He noted that the Veteran’s low back disability had developed during service, which restricted her ability to run, march, stand or sit for prolonged periods of time, wear Kevlar gear, or walk for longer than 20 minutes. After her discharge from service, her low back condition persisted despite her attempts to work at several “light exertion” jobs (i.e., jobs that require walking or standing to a significant degree). As W.S. stated, these attempts were unsuccessful over sustained periods of time because of the increase in her symptoms brought on by job duties such as lifting, walking, or standing. He ultimately opined that the Veteran was totally and permanently disabled from working in any occupation based on her longstanding back problems, her restricted ability to engage in even light work, and her chronic pain and bilateral radicular leg condition. He also opined that her condition was unlikely to improve in the future. As this report is supported by and consistent with other lay and medical evidence of record, the Board finds W.S.’s opinion is entitled to significant probative weight. Last, the Board notes that in an October 2020 memorandum, VA recommended to the Director that extraschedular TDIU was warranted. In doing so, VA cited to various evidence of record, such as the Veteran’s January 2011, August 2014, and June 2019 VA examination reports, as well as the April 2014 vocational rehabilitation report from W.S. Ultimately, having carefully considered the foregoing, the Board finds that the evidence is at least in equipoise as to whether TDIU is warranted on an extraschedular basis. Resolving any reasonable doubt in her favor, the evidence shows that the pain, numbness, and limited range of motion caused by her low back disability has precluded her from working. To be clear, the evidence indicates that her disabilities not only prevent her from working in her chosen fields, but also prevents her from obtaining and maintaining any substantially gainful employment. Indeed, the preponderance of the probative evidence of record indicates that she is unable to comfortably sit or stand for lengthy periods, which would prevent her from doing even work that is not physically demanding. In sum, the Board finds that extraschedular TDIU is warranted for the period beginning on January 10, 2010. 38 C.F.R. §§ 3.102, 4.16(b). REASONS FOR REMAND As set forth above, the issue of entitlement to SMC based on the need for aid and attendance of another has been reasonably raised by the record. At this juncture, however, VA has not yet conducted a VA examination with respect to whether her service-connected disabilities render her in need of regular aid and attendance from another person. As such, remand is necessary. Accordingly, this matter is REMANDED for the following action: Arrange for the Veteran to undergo a VA examination with an appropriate examiner. The claims file should be made available to and reviewed in its entirety by the examiner and all indicated tests and studies should be performed. After reviewing the claims file in its entirety, the examiner is asked to consider the nature and level of impairment resulting from her service-connected disabilities and render specific findings as to whether she is able to dress or undress herself, or keep herself ordinarily clean and presentable; whether she is able to attend to the wants of nature; and whether she suffers from physical or mental incapacity which requires care or assistance on a regular basis to protect her from hazards or dangers incident to her daily environment. (Continued on the next page)   In providing the requested information, the examiner must consider and discuss all pertinent medical and lay evidence, to include statements from the Veteran, regarding her need for aid and attendance. M. Tenner Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Rademacher, 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.