Citation Nr: 21023722 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 07-37 527 DATE: April 21, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to June 5, 2012, for accrued benefits purposes, is granted. FINDING OF FACT Prior to June 5, 2012, the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW For the period prior to June 5, 2012, the criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from August 1972 to October 1974, from September 5, 1980 to September 30, 1980, and from October 1980 to August 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board most recently remanded the matter in June 2017. Unfortunately, the Veteran died in March 2016. The appellant is his nephew; he has been accepted as a substitute claimant in this matter. 1. Entitlement to a TDIU prior to June 5, 2012 As a preliminary matter, the Board notes that a previous remand found that the Veteran’s claim for a TDIU was part and parcel of the Veteran’s claims for increased ratings on appeal at the time. See Aug. 2012 BVA Remand, p. 34. At the time of the August 2012 decision, multiple claims for increased ratings were on appeal. The issue with the earliest claim date was for an increased rating for DDD of the lumbar spine, which dated back to a May 2005 rating decision. This rating decision was the result of a July 8, 2004 original claim. Accordingly, the Board notes that the appeal period for the instant claim began on July 8, 2004. 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, failure to meet the above schedular requirements for TDIU is not a bar to benefits. All veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran’s education, special training, and previous work experience, but not to his age or to the impairments caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Prior to June 5, 2012, the Veteran was service-connected for the following disabilities: obstructive sleep apnea (assigned a noncompensable rating from July 8, 2004 to June 5, 2012 and a rating of 30 percent thereafter); gout (assigned a noncompensable rating from September 1, 1992 to August 4, 2005, a rating of 10 percent from August 4, 2005 to August 21, 2006, and a rating of 20 percent thereafter); degenerative disc disease (DDD) of the lumbar spine (assigned a rating of 10 percent from December 26, 2006 to January 29, 2009 and a rating of 20 percent thereafter); DDD of the cervical spine (assigned a rating of 10 percent from August 4, 2005 to January 13, 2011 and a 20 percent rating thereafter); radiculopathy of the right upper extremity (assigned a rating of 20 percent from April 11, 2013); mechanical low back pain (assigned a rating of 10 percent from February 8, 1995 to December 26, 2006); fracture of the left olecranon (assigned a rating of 10 percent from July 8, 2004); ulnar neuropathy of the left upper extremity (assigned a rating of 10 percent from January 19, 2011); periodontitis (assigned a noncompensable rating from September 1, 1992); and scar of the left elbow (assigned a noncompensable rating from January 19, 2011). The Veteran’s combined evaluations for compensation were as follows: 20 percent from July 8, 2004; 30 percent from August 4, 2005; 40 percent from August 21, 2006; 50 percent from January 29, 2009; and 60 percent from January 19, 2011 to June 5, 2012. Accordingly, in June 2017, the Board remanded the issue of entitlement to TDIU prior to June 5, 2012 to the VA Director for Compensation Service (Director) for extraschedular consideration as required by the provisions of 38 C.F.R. § 4.16(b). See Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In December 2020, the Director found that the Veteran’s service-connected disabilities did not preclude gainful employment prior to June 5, 2012 and that entitlement to TDIU on an extraschedular basis had not been established. However, the Board is not bound by this determination and shall conduct a de novo review of the claim. Wages, 27 Vet. App. at 238. The Veteran reported that he last worked full-time and became too disabled to work in May 2004. See Sept. 2006 VA Form 21-8940. He listed that he was last employed as a program manager, which ended in December 2004. Id. He stated that he lost six months with this position due to illness. Id. The claims file contains both lay and medical evidence detailing the effects of the Veteran’s service-connected disabilities. Several of these records relate to pain that the Veteran suffered as a result of his lower back disabilities. The Board notes that the Veteran was service-connected for either mechanical low back pain or DDD of the lumbar spine for the entire period on appeal. The Veteran stated that in May 2004, his back pain had increased to such a degree that it had become intolerable. See Feb. 2004 Correspondence, p. 1. In June 2004, the Veteran stated that he experienced severe back pain and difficulty getting out of bed in the morning due to stiffness and pain. See Jul. 2004 Correspondence, p. 1. He further noted use of a wheelchair due to intense pain and inability to walk, inability to sit for long periods of time, inability to drive a vehicle due to pain and medications, impairment of ability to think due to pain, incontinence, and inability to perform multiple activities of daily living. Id. The Veteran also noted that pain in his left elbow radiated throughout his arm, shoulder, neck, and left side of the head, which caused inability to properly use his left arm and hand and blurry vision due to left eye swelling. Id. He also noted that he had been unable to work for the past six weeks due to constant pain, inability to drive, and lack of concentration. Id. In July 2004, D.F., a nurse practitioner, stated that the Veteran was unable to maintain any job and that the timeframe of his disability was unknown. See Feb. 2004 Medical Treatment Record – Non-Government Facility, p. 1. D.F. noted that the Veteran suffered from a Category 4 health condition, which the form notes is a “chronic condition.” Id. D.F. noted that the Veteran would require neurological evaluation and pharmacotherapy on a continuing basis and that the Veteran was unable to drive, operate equipment, required assistance with all activities of daily living, and was unable to perform any business tasks or transactions. Id. In August 2004, the Veteran took medical leave under the Family and Medical Leave Act due to a serious health condition that made him unable to perform the essential functions for his job. See Feb. 2004 Third Party Correspondence. In November 2004, Dr. R.M., a family practice physician stated that the Veteran had not ambulated well since May 19, 2004. See Mar. 2005 Medical Treatment Record – Non-Government Facility, p. 11. Further, Dr. R.M. stated that he did not have good control over his left arm. Id. In December 2004, Dr. R.M. stated that he did not feel that the Veteran was capable of performing full-time work that was primarily seated, including responsibilities for directly managing staff, technical activities or projects and programs, performance or related administrative functions, and travel. Id. at 10. In January 2005, the Veteran reported a pain level of 9 out of 10 in his lower back and both lower extremities. See May 2005 Medical Treatment Record – Government Facility, p. 23. The provider noted that the Veteran was wheelchair bound. Id. In February 2006, Dr. A.V., a licensed clinical psychologist, stated that the Veteran experienced a progressive deterioration in physical functioning with significant cognitive impairment and emotional distress, which is a result of the intensity of his pain. See Sept. 2016 Medical Treatment Record – Non-Government Facility, p. 27. Dr. A.V. opined that he is “definitely not capable of maintaining any occupation.” Id. In January 2007, Dr. K.S., a VA physician, stated that the Veteran has “multiple medical problems and disabilities” and that he is not a candidate for employment. See Oct. 2010 Third Party Correspondence. In November 2011, the Veteran underwent a VA examination. The examiner opined that the Veteran’s service-connected cervical and lumbar DDD with radicular-like pain would make both physical and sedentary employment difficult. See Dec. 2011 VA Examination, p. 22. The examiner noted that these conditions are aggravated by both prolonged sitting, standing, and walking. Id. The examiner further stated that daytime hypersomnolence and side effects of narcotic pain medication would also make securing and maintaining either physical or sedentary labor difficult. Id. The Board finds that the evidence is at least in equipoise as to whether the Veteran was unable to secure or follow a substantially gainful occupation prior to June 5, 2012. In so finding, the Board acknowledges the Social Security reports suggesting that the Veteran was exaggerating his level of disability to obtain benefits and others records indicating Veteran suffered from impairment stemming from non-service connected disorders. However, as outlined in the evidence above, the Veteran reported severe back pain for the entire appeal period. In June 2004, he reported use of wheelchair with inability to walk, inability to sit for long periods of time, inability to drive a vehicle due to pain and medications, impairment of ability to think due to pain, incontinence, and inability to perform multiple activities of daily living. A month later, a nurse practitioner opined that the Veteran was unable to maintain any job and noted that he suffered from a chronic condition. In February 2006 and January 2007, two separate providers stated that the Veteran was unemployable. In November 2011, as part of a VA examination, the examiner opined that the Veteran’s service-connected cervical and lumbar DDD would have made even sedentary employment difficult for the Veteran. The Board assigns a great deal of probative value to this examination as the examiner demonstrated a thorough review of the record and gathered a significant level of detail from the Veteran regarding his disabilities. The Board finds that the November 2011 examiner’s opinion regarding the impact of the Veteran’s back disability on employment relates to the Veteran’s long history of back issues he noted throughout the entire appeal period. As noted above, the Veteran had contended since June 2004 that pain as a result of his service-connected back condition has severely affected his ability to remain employed. Thus, the November 2011 opinion bolsters the Veteran’s lay reports, suggesting that the effects of such pain dated back to at least as early as July 2004. Accordingly, as the evidence of record is at least in equipoise as to whether the Veteran was able to secure or follow a substantially gainful occupation throughout the appeal period, the Board finds that a TDIU prior to June 5, 2012 is warranted. G. E. Wilkerson Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Watkins, 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.