Citation Nr: 21022487 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 15-31 474 DATE: April 15, 2021 ORDER Entitlement to an extraschedular rating for intervertebral disc syndrome (IVDS) is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is denied. FINDINGS OF FACT 1. The Veteran’s IVDS does not present such an exceptional or unusual disability picture that the available schedular evaluations are inadequate; moreover, the applicable diagnostic criteria reasonably describe or contemplate the severity and scope of the Veteran’s service connected IVDS. 2. The Veteran’s service-connected disabilities did not preclude him from securing or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an extraschedular rating for IVDS are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1. 2. The criteria for entitlement to a TDIU on an extraschedular basis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1971 to May 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. The Veteran’s claims for an extraschedular rating for IVDS and a TDIU on an extraschedular basis were previously before the Board, in June 2019. At that time, the Board remanded the claims to obtain a VA medical opinion for the IVDS claim and for referral of the extraschedular TDIU claim to the Director, Compensation Service. As the record reflects that the development has occurred, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board notes that the Veteran’s claim for entitlement to special monthly compensation (SMC) for loss of a creative organ was also remanded as part of the June 2019 Board decision. The RO granted entitlement to SMC for loss of a creative organ as part of a September 2020 rating decision. The Board finds that the grant of entitlement to SMC constituted a full award of benefits sought on appeal. Accordingly, that issue is no longer before the Board on appeal. Entitlement to an extraschedular rating for IVDS Generally, disability ratings are determined by evaluating the extent to which a service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing symptomatology with the criteria set forth in VA’s Rating Schedule. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. However, where schedular evaluations under VA’s Rating Schedule are found to be inadequate, extraschedular evaluations may be awarded pursuant to referral of such claim to the Under Secretary for Benefits or the Director of Compensation Service for consideration of an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability. See 38 C.F.R. § 3.321(b)(1); Barringer v. Peake, 22 Vet. App. 242, 243-44 (2008). The Veteran contends that he is entitled to extraschedular consideration for his IVDS based on his inability to drive due to the medications prescribed for his back. As noted, the claim was remanded to obtain a medical opinion regarding the effect of the Veteran’s medication on his ability to drive. The RO was thereafter directed to consider whether to refer the claim for extraschedular IVDS. In determining whether an extraschedular evaluation is warranted, the Board must first consider whether the evidence of record presents such an exceptional or unusual disability picture that the available schedular evaluations for that service-connected disability are inadequate, as the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the service-connected disability on appeal. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If the schedular rating criteria are found to be inadequate, the Board must next determine whether the exceptional disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. See id. at 115-16. Where both of these two elements have been met, the claim at issue must be referred for consideration of an extraschedular rating; otherwise, the schedular evaluation shall be deemed adequate, and no referral is required. See 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. Following the June 2019 remand, a VA medical opinion was obtained in December 2019. The VA examiner reviewed the relevant treatment records and listed the medications taken by the Veteran for his IVDS. The examiner concluded that while some of the medication could cause drowsiness with caution advised with driving, none of the Veteran’s medication would render him unable to or substantially restrict his driving. Upon receipt of the opinion, the RO declined to refer the claim for extraschedular IVDS rating on the ground that the case did not present an unusual disability picture. After careful review, the Board finds that the Veteran’s service connected IVDS does not warrant referral for consideration of an increased evaluation on an extraschedular basis as the schedular criteria applicable to the condition adequately contemplates its severity and symptomatology, considering the Veteran’s pain, limitation of motion, functional loss, impact on his employability and related complications. Moreover, the evidence of record does not reflect that the scope of the Veteran’s low back condition involves any signs or symptoms not contemplated by VA’s Rating Schedule. Although the Veteran reports that he is unable to drive due to his medication, the December 2019 VA medical opinion specifically concludes that the Veteran’s medication would not render him unable to drive. The Board finds the VA medical opinion entitled to probative weight as it is based on a review of the relevant records and specifically considers the medications taken by the Veteran. The Board also finds that the medical opinion outweighs the Veteran’s report that he is unable to drive because of medication prescribed for his back disability. In the absence of evidence that the Veteran cannot drive due to his medications, the record contains no competent medical evidence indicating that the Veteran’s IVDS results in an exceptional or unusual disability picture, such as evidence of frequent hospitalizations, or marked interference with occupational functioning or the performance of daily activities. See Thun, 22 Vet. App. at 116. In light of the foregoing, the Board finds that a preponderance of the evidence of record weighs against a finding that the Veteran’s claim for an increased rating for his IVDS warrants extraschedular consideration. 38 C.F.R. § 3.321(b)(1). As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. TDIU on an extraschedular basis In order to be entitled to a TDIU, the evidence must show that the Veteran is incapable “of performing the physical and mental acts required” to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran’s education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual’s particular circumstances. See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A 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 either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Here, the Veteran is service connected for IVDS, rated at 20 percent, and tinnitus, rated at 10 percent. The Veteran also has a number service-connected disabilities rated as noncompensable. The Veteran’s combined disability rating is 30 percent from November 10, 2011. As such, the Veteran does not meet the schedular requirements for a TDIU. 38 C.F.R. § 4.16(a). Even if a Veteran’s service-connected disabilities do not meet the schedular requirements for a TDIU, “[i]t 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.” 38 C.F.R. § 4.16(b). For this reason, a TDIU may still be assigned on an extraschedular basis to a Veteran whose disability ratings fail to meet the required minimums. Where this is warranted, the claim must first be referred by the Agency of Original Jurisdiction (AOJ) to the Director, Compensation Service for extraschedular consideration. Thereafter, the Board may review the decision of the Director and make an independent determination on the matter. Wages v. McDonald, 27 Vet. App. 233, 238 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). The evidence of record reflects that the Veteran was employed as a custodian with the United States Postal Service from 1991 until his retirement in June 2014. The Veteran testified and submitted a lay statement indicating that he retired from his position due to his back pain affecting his ability to drive the one hour to work each way and to perform the required functions of the job. The record includes a May 2013 VA examination for the Veteran’s back condition. The VA examiner concluded that the Veteran’s back condition had no impact on the Veteran’s ability to work. As noted, the December 2019 VA examiner concluded that the Veteran’s medications did not prevent him from driving. VA treatment records reflect the Veteran’s continuing chronic pain with episodes of his back “giving out.” The Veteran reported from 2014 through 2016 that he had episodes where his back “went out,” requiring bed rest and the use of heat and pain medication. The Veteran reported in April 2017 that he exercised every day and had not had any recent exacerbations for his lower back pain. A January 2019 physical therapy note indicated that the Veteran had 8 sessions of physical therapy treatment since November 2018 and that his goals had been met, with no further treatment indicated. The Veteran was discharged from physical therapy with directions to continue his home exercise program. The Veteran was seen in April 2019 with complaints of back pain and directed to use cold and warm compresses to treat the pain. The Veteran had an episode of acute back pain in August 2019 and was provided a prednisone prescription. A December 2019 urgent care note for the Veteran’s complaint of his back giving out reflects that he was directed to use medication, ice and heat, and gradually resume his activities. The claim for a TDIU on an extraschedular basis was referred to the Director, Compensation Services, for consideration. As part of that referral, the RO prepared a November 2020 administrative review, in which it recommended that the TDIU on an extraschedular basis be denied because the treatment records did not show that the Veteran was unable to establish gainful employment due to his service-connected disabilities. The review noted that the records from 2017 through 2019 noted “tremendous improvement” in the Veteran’s back condition, with the ability to perform light exercise. In a December 2020 advisory opinion, the Director concluded that TDIU on an extraschedular basis should be denied because, although the Veteran had some limitations due to his back condition, he was not prohibited from gainful employment. The opinion noted that the medical evidence demonstrated the Veteran’s ability to engage in physical therapy and exercise, including walks and stretches. Following review of the record, the Board finds no persuasive evidence that counters the Director’s conclusion. The evidence during the period under consideration reflects that, although the Veteran experienced functional limitations as a result of this service-connected back disability, he was not precluded from securing or following a substantially gainful occupation. The Board acknowledges the Veteran’s competent and credible claim that he experienced back pain that limited his ability to work, but his lay testimony is outweighed by the medical evidence, including the VA examination, VA medical opinion and treatment records, which demonstrate some impairment in occupational functioning, but do not demonstrate the inability to obtain or maintain substantially gainful employment. Accordingly, the Board finds that the preponderance of evidence is against a finding for an extraschedular TDIU and the claim is denied. As the preponderance of evidence is against the Veteran’s claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S.C. KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.