Citation Nr: 21022015 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 13-22 515 DATE: April 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to a service-connected disability (TDIU), on an extraschedular basis, is granted, effective August 7, 2010. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, from August 7, 2010, the Veteran's service-connected degenerative disc disease with bilateral lower extremity radiculopathy have prevented him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.16 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 2007 to August 2010. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter in April 2015 and March 2019 for additional development. The matter is now returned to the Board for further appellate review. Entitlement to a TDIU, on an extraschedular basis, effective August 7, 2010 The Veteran contends his back disability with bilateral lower extremity radiculopathy precludes him from obtaining employment. Total disability ratings 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, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such 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. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes. 38 C.F.R. § 4.16(a). 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 any form of gainful employment consistent with his education and occupational experience. 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, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran is service connected for left lower extremity radiculopathy, rated at 20 percent; right lower extremity radiculopathy, rated at 20 percent; degenerative disc disease, rated at 10 percent; tinnitus, rated at 10 percent; right knee patellofemoral pain syndrome, rated as noncompensable; left knee patellofemoral pain syndrome, rated as noncompensable; and a right ankle sprain, rated as noncompensable. Although the Veteran’s degenerative disc disease and bilateral lower extremity radiculopathy (including the bilateral factor) may be combined as a single disability, his combined rating is 50 percent. Thus, his disabilities do not meet the minimum schedular threshold requirement (of a combined disability rating of 70 percent or more) to be considered for a TDIU rating. 38 C.F.R. § 4.16(a). A TDIU may be awarded on an extra-schedular basis if a Veteran fails to meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a) but is still unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration The Board submitted the Veteran’s case to the Director for extraschedular consideration. The Director reviewed the record and determined that the Veteran's service-connected disabilities did not prevent employment. The Director reasoned the Veteran’s lumbar back disability would not preclude him from manual nor sedentary work; jobs have become less strenuous in recent years because of an increase in reliance on computers, the Internet, and email; and a person need not be college educated or highly skilled to be productive in today’s environment. Concerning this determination, the Board is not bound by an adverse determination by the Director regarding extraschedular entitlement to a TDIU. The Court has determined that the Director's decision is in essence a decision by the AOJ and is no different than an RO's decision in terms of its effect on the Board's jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). As noted above, the Veteran' contends he is unemployable due to his low back disability with bilateral lower extremity radiculopathy. The Veteran has not asserted, nor does the record suggest, the Veteran’s other service-connected disabilities render him unable to work. In March and September 2011, the Veteran filed for a TDIU. He indicated his highest level of education is high school, he has no other training or education, he last worked from September 5, 2010 to September 18, 2010, and he stopped working because of his back pain. In February 2012, VA provided the Veteran a spine examination. The Veteran reported that after active duty he attempted to work on an assembly line in manufacturing but quit after only two weeks because the twisting, turning, and lifting caused too much pain. The examiner concluded the Veteran could find employment that did not require him to lift anything heavier than 10 pounds and that does not require prolonged sitting or standing. In an August 2012 lay statement, the Veteran reported he experiences flare ups of his back hourly and is unable to find a job, which would accommodate his back pain. Moreover, the Veteran has reported the employment opportunities where he lives are primarily manual labor, which he would be unable to do because of his back. In June 2013, VA provided the Veteran another spine examination. The Veteran reported pain of an 8-10 out of 10, difficulty sleeping because of his back pain, and that he receives pain management injections that only last for a few weeks. The examiner noted the Veteran experiences some functional impairment, to include pain on movement, difficulty walking, excess fatigability, and an impaired ability to execute skilled movements smoothly. The examiner concluded the Veteran’s lumbar spine condition impacts his ability to work and he would have difficulty finding employment. Specifically, the examiner reported the Veteran’s back pain is problematic to control, he is not able to stand or sit for any length of time or lift more than 20 pounds. In March 2014, VA provided the Veteran another spine examination. The Veteran reported he receives pain management injections for his back, takes Gabapentin four times per day, and Vicodin as needed. He reported an average pain of 5 out of 10 but upon standing more than 30 minutes, pain of 10 out of 10. He reported his back pain impacts his ability to work because there are primarily manual labor jobs where he lives, and he is unable to work manual labor jobs because of his back. The Veteran further reported that he uses his father’s cane as needed to walk. The examiner concluded the Veteran would be able to work a sedentary job. In November 2016, VA provided the Veteran a spine examination. The Veteran reported daily low back pain, typically following activity, usually lasting for minutes to hours. The Veteran reported flare-ups following up and down motions or prolonged sitting. He further reported worsening back pain that prevents him from being able to sit up or get out of bed, occurring 2 to 6 times per month. Radicular pain was noted in the right lower extremity, and numbness bilaterally. The examiner concluded the Veteran’s back disability would impact his ability to work. The examiner reported the Veteran must avoid operating heavy machinery that causes fibrillation, such as a lawnmower, and must avoid repetitive up-and-down movements, prolonged sitting, lifting, and carrying. In January 2019, VA provided the Veteran a peripheral nerves examination. The Veteran reported he experiences low back pain that radiates bilaterally after standing for more than three hours. Further, he reported that he worked as a taxi driver and in a factory, but he quit because of his back pain. The examiner concluded the Veteran’s bilateral lower extremity radiculopathy interferes with his ability to stand or walk for prolonged periods of time. (Continued on the next page)   After resolving any doubt in the Veteran's favor, the Board finds that the Veteran's service-connected back disability with lower extremity radiculopathy alone have been of sufficient severity to produce unemployability consistent with his education, employment experience, training, and employment opportunities where he resides. For these reasons, an extra-schedular TDIU is warranted. K. Anderson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Zachery S.C. Luce, 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.