Citation Nr: 21023445 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 10-35 734 DATE: April 20, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to January 12, 2010 is granted, subject to the law and regulations governing the award of monetary benefits. FINDING OF FACT Prior to January 12, 2010, the Veteran did not meet the schedular criteria for the assignment of a TDIU; however, his service-connected low back strain with degenerative joint and disc disease L4-S1 with herniated nucleus pulposus L4-L5 (back disability) rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for an award of a TDIU for the period prior to January 12, 2010 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active air service from December 1990 to August 1997. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO), which granted a higher rating for the service-connected back disability effective November 21, 2008. The current TDIU claim arose during the appeal period for the back disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In February 2013, the Veteran testified at a hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. In February 2016, the Board offered the Veteran the opportunity for a hearing before a new VLJ. However, he indicated that he did not wish to appear at another hearing in March 2016. This case was previously remanded by the Board in November 2013, April 2016, and March 2018. In April 2019, the Board denied entitlement to a TDIU prior to April 8, 2014. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court), which, in February 2020, partially vacated and remanded the April 2019 Board decision for additional development and readjudication. In November 2020, the Board granted entitlement to a TDIU from January 12, 2010, to April 8, 2014, but remanded the period from November 21, 2008, for extraschedular consideration. The matter has since been returned to the Board for appellate review. Entitlement to a TDIU prior to January 12, 2010 The Veteran has reported that his service-connected back disability has prevented him from securing or following any substantial gainful occupation since November 21, 2008. From November 21, 2008, to January 12, 2010, the Veteran was only service connected for the back disability, rated as 20 percent disabling. Because the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a) for the assignment of a TDIU, the matter was referred to the Director of VA’s Compensation Service (Director) for extraschedular consideration under 38 C.F.R. § 4.16(b). In January 2021, the Director determined that an extraschedular TDIU was not warranted. In this regard, the Director noted that the Veteran was able to work part-time as an accountant. Additionally, the Director stated that Social Security Administration (SSA) determined that the Veteran was disabled due to his back and neuropathies. The Director conceded that the Veteran’s service-connected back disability caused functional limitations. However, the Director found that the preponderance of the evidence was against finding that the Veteran was unable to obtain or maintain gainful employment due to his service-connected back disability. However, the Board disagrees with Director’s findings to the extent that the Director did not consider all contemporaneous lay and medical evidence. Specifically, the Veteran reported that he became too disabled to work in May 2002, at which time his service-connected back disability prevented him from obtaining and maintaining any form of gainful employment. The Veteran related that he began experiencing severe low back spasms in 2002, which left him incapacitated and nonambulatory. Subsequently, he was fired from his full-time accounting job and became self-employed as a part-time accountant. SSA records documented that the Veteran’s self-employment reportedly earned him less than the federal poverty guidelines. Furthermore, in a November 2020 decision, the Board found that the Veteran had been engaged in marginal employment since June 2008. In April 2009, a VA examiner noted that the Veteran’s back disability significantly affected his occupational activities due to pain and problems with lifting and carrying. Additionally, the examiner indicated that the Veteran’s back disability impacted his activities of daily living, to include chores, shopping, physical activity, and traveling. At an independent vocational assessment in March 2015, the Veteran described flare-ups and functional limitations such as an inability to sit for prolonged periods. He stated that he worked increasingly less hours as his back disability worsened. When he experienced severe back pain, he did not work at all. In short, as his back pain permitted, he would work at his own discretion, pace, and schedule. In September 2020, a vocational specialist opined that the Veteran had been unable to perform substantially gainful employment as an accountant, to include sedentary work, since 2007. It was reasoned explained that the Veteran would have significant interruptions in attention to task and task completion. The vocational specialist noted that the Veteran would not make timely transitions from sitting to standing. Further, it was noted that the Veteran would not be able to persist at tasks without an unreasonable number of unscheduled breaks which would negatively impede his productivity. Based on the subjective report of the Veteran and the objective findings in the VA examination reports and independent vocational assessments, the Board finds that the Veteran’s service-connected back disability significantly impacted his ability to function in an occupational setting prior to January 12, 2010. Additionally, the Veteran had an extensive post-service occupational history in a single field as an accountant. The Board finds that the Veteran’s ability to perform sedentary and physical tasks are critical functions of his previous work. In light of the Veteran’s employment history and the functional limitations described above, the Board finds that he was unable to secure or follow a substantially gainful occupation prior to January 12, 2010. Accordingly, resolving reasonable doubt in favor of the Veteran, the Board finds that entitlement to TDIU prior to January 12, 2010 is warranted pursuant to 38 C.F.R. § 4.16(b). 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The appeal is granted. J. Ragheb Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Ware, 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.