Citation Nr: 21022063 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 08-30 871 DATE: April 14, 2021 ORDER Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) as of February 20, 2015, but not earlier, is granted. FINDING OF FACT As of February 20, 2015, but not earlier, the Veteran was unable to secure and follow a substantially gainful occupation by reason of service-connected neck and back disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU as of February 20, 2015, but not earlier, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16(b) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1985 to September 1985 and from March 1990 to December 1992. These claims come before the Board of Veterans’ Appeals (Board) on appeal from a May 2007 rating decision of the Jackson, Mississippi, Department of Veterans Affairs (VA) Regional Office (RO). Entitlement to TDIU prior to January 16, 2020 The Veteran seeks TDIU prior to January 16, 2020. He contends that a service-connected back disability prevents him from obtaining gainful employment. The Veteran states that he was employed with an animal shelter from 2007 to 2008, then with animal control from 2008 to 2013. As of 2013, the Veteran asserts that he has been unable to work. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides a rating of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. If the schedular rating is less than total, a total disability rating can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that the Veteran has one service-connected disability rated 60 percent or higher; or two or more service-connected disabilities, with one disability rated 40 percent or higher and a combined rating of 70 percent or higher. The existence or degree of nonservice-connected disabilities will be disregarded if the above-stated percentage requirements are met and the evaluator determines that the Veteran’s service-connected disabilities make him incapable of substantial gainful employment. 38 C.F.R. § 4.16(a). 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 do not meet the percentage standards to be considered under 38 C.F.R. § 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(a). The phrase unable to secure and follow a substantially gainful occupation contains both economic and noneconomic components. The economic component refers to an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person. The noneconomic component requires a determination as to a veteran’s ability to secure and follow such employment. Attention should be given to the veteran’s history, education, skills, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the types of activities required by the occupation at issue (such as lifting, bending, sitting, standing, walking, climbing, as well as auditory and visual limitations); and whether the veteran has the mental ability to perform the activities required by the occupation at issue (such as memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity). Ray v. Wilkie, 31 Vet. App. 58 (2019). An award of TDIU is an individualized determination, specific to a veteran’s particular circumstances, such as history, education, skills, and training. Todd v. McDonald, 27 Vet. App. 79 (2014). It does not require a showing of 100 percent unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran’s VA Form 21-8940 shows he last worked in 2012 as an animal control officer and left employment due to back fusion. He has a high school education. He worked in March 2008 as a maintenance supervisor. He has two years of college education. A VA for 21-4192 from City of Columbus, Mississippi confirms the Veteran was employed from August 2008 to February 2013, when employment ended due to a “chargeable accident.” In a June 2008 VA examination, the examiner opined that the Veteran was able to do his current job as an attendant in an animal care shelter with accommodations despite neck and back disabilities. The Veteran had not missed work as a result of the disabilities except for doctor appointments. In a January 2015 VA neck and back examination, the examiner opined that the Veteran’s neck and back disabilities impacted the ability to work. The Veteran reported only being able to work twice a week due to back pain, but not really neck pains. The Veteran was able to perform all activities of daily living without assistance. The Veteran stated he had difficulty walking long distances, pain with walking up or down long stairs, difficulty walking over uneven terrain, and pain with standing in one position for greater than 30 minutes. The examiner noted that the Veteran should stretch before heavy work, carrying, or working in odd positions. Potential work-related limitations included repetitive proper lifting, frequent turning of head to extremes, and overhead work. A Social Security Administration decision shows that the Veteran was found disabled as of February 20, 2015, due to a primary diagnosis of a back disability, and a secondary diagnosis of a mood disorder. The Veteran was restricted to lifting no more than 10 pounds, no more than two hours of walking or standing, no more than six hours of an eight hour work day, The Veteran had worked as kennel working from May 2007 to April 2008, as an animal control officer from May 2008 to January 2013, and as a security officer from February 2014 to February 20, 2015. In a November 2015 VA back examination, the examiner opined that the Veteran’s back disability impacted the ability to work. The examiner found that limitations existed for repetitive and heavy lifting. The Veteran was also limited in regard to prolonged sitting or standing. The examiner found that the Veteran would likely be limited to no more than sedentary type work. Private treatment records from October 2017 to October 2019 made multiple mentions of back and neck pain limiting mobility and reaching. January 2020 VA examinations all concluded that the Veteran’s service-connected lumbar and cervical spine disabilities, with their associated radiculopathies, precluded gainful employment. In October 2020, the Board remanded the claim for consideration to the assignment of TDIU pursuant to 38 C.F.R. § 4.16(b), prior to January 16, 2020. Where there is evidence that a veteran is unemployable by reason of service-connected disability, but does not meet the percentage requirements, the Board is required to remand the claim, so that it can be referred to the VA Director of Compensation Service for adjudication in accordance with 38 C.F.R. § 4.16(b). Once a referral for an extraschedular TDIU rating under § 4.16(b) is made by the Board, the Director of Compensation Service then determines whether TDIU under § 4.16(b) is warranted. Only after that adjudication does the Board have jurisdiction to decide the TDIU claim on appeal. In October 2020, a Decision Review Officer (DRO) recommended that the claim for TDIU be granted prior to January 16, 2020. In support of that finding, the DRO highlighted the Veteran was granted entitlement to Social Security Administration (SSA) disability benefits in 2015 and the primary condition used to make that decision was the back disability. The DRO also highlighted the medical evidence of record showing the restrictions on employment caused by the service-connected disability, and the Veteran’s work history and education level. In December 2020, the Director of Compensation determined the totality of the evidence did not support the contention that due to the service-connected disabilities the Veteran was unable to secure or follow a substantially gainful occupation, including in a sedentary work setting prior to January 16, 2020. The Director of Compensation highlighted that the November 2015 VA back examination occurred four months post spine surgery. According to the neurosurgeon, there were no definite restrictions and the Veteran could perform activities as tolerated. X-rays since the surgery showed everything looking good. The Veteran reported decreased pain, which was no longer present at all times. Specific functional limitations were provided as limited repetitive and heavy lifting, repeated to prolonged sitting or standing, and the Veteran was likely limited to no more than sedentary-type work. The Board finds that a TDIU is warranted as of February 20, 2015, but not earlier. The Board finds that the evidence reasonably supports granting the claim of entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) prior to January 16, 2020. The Board notes initially that TDIU can be awarded when a Veteran is unemployable by reason of the service-connected disabilities but does not meet the percentage criteria for a scheduler TDIU. 38 C.F.R. § 4.16. The Board is not bound by the Director’s decision in determining entitlement to TDIU. The Board finds that the Director’s decision did not fully consider the multiple medical records citing that the Veteran would have difficulty obtaining employment or may be restricted to at most sedentary employment. The administrative decision also did not account for the Veteran’s statements regarding his usual line of work which required lifting, walking, and standing for prolonged periods of time. Having reviewed the Director’s decision, the Board notes that it is not probative evidence on the issue of entitlement to TDIU on an extraschedular basis prior to January 16, 2020, but an adjudicative decision to be reviewed on appeal. The Board has review the evidence of record which shows that the Veteran last worked on February 20, 2015. The Social Security Administration decision, based on a review of substantial medical evidence, found that the limitations caused by the back disability were severe, and noted the employment and physical activity restrictions. The Board finds that the evidence shows that it is at least as likely as not that the Veteran has been unable to secure or follow a substantially gainful occupation since February 20, 2015. However, the Board finds that the evidence shows employment prior to that date, which is evidence against a finding of unemployability. The evidence does not show that employment was less than substantially gainful. The Veteran has asserted consistently that he has been unable to work at least since 2013 as a result of service-connected neck and back disabilities. The Board finds that the record supports a finding that the service-connected neck and back disabilities precluded employment as of February 20, 2015, but not earlier. The Board finds that the preponderance of the evidence is against a finding that the Veteran was unemployable prior to February 20, 2015, as he ended one year of employment as a security officer on that date. Accordingly, the Board finds that the criteria for a TDIU pursuant to 38 C.F.R. § 4.16(b) as of February 20, 2015, have been met. Therefore, TDIU is granted as of February 20, 2015. As the preponderance of the evidence is against a finding that the Veteran was unemployable prior to February 20, 2015, the Board finds that entitlement to TDIU prior to February 20, 2015, must be denied. Harvey P. Roberts Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cross, 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.