Citation Nr: 21022896 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 09-41 231 DATE: April 19, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to the service-connected disabilities (TDIU), to include on an extraschedular basis, prior to May 18, 2011, is granted. FINDING OF FACT Prior to May 18, 2011, the evidence is at least in equipoise as to whether the Veteran’s service-connected back disability precluded substantially gainful employment. CONCLUSION OF LAW Prior to May 18, 2011, the criteria for the assignment of a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321, 3.340, 3.341, 4.16(b), 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from October 1991 to March 1999. This matter is on appeal from an April 2008 rating decision. The Veteran testified at a Board of Veterans’ Appeals (Board) hearing in October 2010. In May 2011, the Board remanded the appeal to afford the Veteran contemporaneous VA examinations. In July 2017, the Veteran was informed that the Veterans Law Judge who presided over his October 2010 hearing retired. The Veteran elected to have another Board hearing. The Veteran testified at another hearing before the undersigned in September 2018. In March 2019 and November 2020, the Board remanded the appeal for additional evidentiary development. Entitlement to a TDIU, to include on an extraschedular basis, prior to May 18, 2011. In February 2008, the Veteran filed a claim for an increased evaluation for his service-connected thoracolumbar spine strain with degenerative disc disease and joint disease. He reported that his back disability had worsened and that he had difficulty walking and performing daily activities. His doctor recommended he have surgery. The Veteran is a high school graduate. He was last employed in 2012 at the parts department in a motorcycle shop. He worked between 30 and 35 hours per week. He lost 2 months of work due to illness. See February 2014 VA Form 21-8940. Generally, total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16(a). Prior to May 18, 2011, the Veteran was service-connected for the following disabilities: thoracolumbar strain with degenerative disc disease and degenerative joint disease rated as 40 percent disabling; tendonitis of the right ankle rated as 20 percent disabling; tendonitis of the left ankle rated as 20 percent disabling; residuals of injury to the left fourth finger rated as zero percent disabling; residuals of fracture of the right little finger rated as zero percent disabling; and, hyperextension injury of the dorsum of the right foot rated as zero percent disabling. His combined disability rating was 60 percent. Thus, the schedular criteria for consideration of a schedular TDIU are not met prior to May 18, 2011. 38 C.F.R. § 4.16(a). However, 38 C.F.R. § 4.16(b) provides that it is the established policy of the VA 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 of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 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. The evidence of record demonstrates that the Veteran was unable to maintain substantially gainful employment due to his service-connected back disability. See 38 C.F.R. § 4.16(b). In March 2008, the Veteran underwent a VA examination. The Veteran reported that his legs gave out in August 2007 and that he fell over a banister and fractured his scapula. His current treatment included medication, a back brace, and the use of a cane for long distances. His bowel and bladder function were normal, and his back pain was limited to his back without radiation. Upon examination, there was tenderness from the lower thoracic area to the entire lumbar area. His reflexes were intact, and his muscle strength testing was 4/5 (normal is 5/5) for the bilateral quadriceps and hamstrings. His gait was normal without a limp. The VA examiner concluded that the Veteran’s main functional impairment was pain with repetitive motion. In September 2008, the Veteran wrote that he stopped taking painkillers to treat his service-connected disabilities, and as a result, he experienced withdrawal symptoms. He was hospitalized for 3 days and missed 3 weeks of work. He was fired from his pizza delivery job. The Veteran was afforded additional VA examinations in May 2009. The Veteran was employed full-time as a parts manager for a motor sports shop. He reported bilateral ankle pain with prolonged walking and standing. The Veteran did not use braces for his ankle disabilities. He was able to walk into the waiting room with a very mild antalgic gait. He denied that his right, foot, and finger disabilities interfered with his ability to work. In his October 2009 VA Form, the Veteran wrote that he was only able to work 20 hours per week because his employer was aware of his condition. In January 2010, the Veteran testified at a Decision Review Officer hearing. He indicated that he worked 6 hours per day 3 days per week at a parts store. The Veteran took a second job at a pizza restaurant, but stopped working after 3 weeks, because it was too much for his back. Standing in the kitchen for extended periods of time was painful. At the parts store, he was unable to lift the heaviest boxes. He reported experiencing pain throughout the day. At the end of his shift, he was exhausted. When asked if he could have a job where he sat, he stated that it was difficult to find work doing anything. The Veteran testified at a Board hearing in October 2010. The Veteran indicated that he worked 26 hours per week at a parts counter. Each morning his pain level was a 4 or 5 (on a scale of 1 to 10) and steadily increased with activity. He wore a back brace that he was given by the VA. His previous jobs included pizza delivery driver, pizza shop manager, and a press operator. His back disability caused increased absenteeism and affected his ability to maintain satisfactory work performance. He missed work 4 to 5 times per month due to his back disability. In November 2010, the Veteran’s son wrote that over the last three years his father was unable to participate in various hobbies and activities of daily living due to his constant back pain. A coworker and friend also wrote that the Veteran experienced problems at work because he was unable to lift due to his back pain. In May 2012, the Veteran underwent another back examination. The VA examiner found that the Veteran’s service-connected back disability impacted his ability to work. The Veteran worked 20 hours per week at a parts department. His employer was a friend and allowed him to sit at work, rest at any time, and leave the job whenever he needed to due to his spine. In January 2021, VA obtained an opinion from the Director of Compensation Services. The Director of Compensation Service found that the Veteran was not precluded from substantial gainful employment due to his service-connected disabilities. She explained that the Veteran was employed full-time until 2012 and that technological advancements have made jobs less physically strenuous. Based on the forgoing, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected back disability precludes him from substantially gainful employment. The Veteran’s only employment for the relevant period on appeal was at a motorcycle shop owned by his friend. He was able to take time off whenever he needed to due to his back disability. The Board finds that this constitutes sheltered employment, which is considered marginal employment. The Veteran worked at a pizza restaurant but was fired after 3 weeks due to the effects of his back disability. The Board acknowledges the negative January 2021 decision rendered by the Director of Compensation Services. However, the Board, affording the Veteran the benefit of the doubt, disagrees with the conclusion reached by the Director that the severity of the Veteran’s service-connected disabilities did not render him unemployable.   Based upon the forgoing, a TDIU on an extraschedular basis is granted prior to May 18, 2011. 38 C.F.R. § 4.16(b). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.R. Watkins, 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.