Citation Nr: 21024179 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 11-24 128 DATE: April 22, 2021 ORDER An extraschedular total disability rating based on individual unemployability (TDIU) from July 29, 2009, through June 9, 2011, is granted. FINDING OF FACT Giving the Appellant the benefit of the doubt, the Veteran’s service-connected lumbar spine disability precluded him from being able to secure and/or follow substantially gainful employment from July 29, 2009, through June 9, 2011. CONCLUSION OF LAW The criteria for an extraschedular TDIU from July 29, 2009 through June 9, 2011 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.341, 4.3, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1969 to April 1989. The Veteran passed away in November 2013. The Appellant is the surviving spouse. This matter originally came before the Board of Veterans’ Appeals (Board) from a February 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. The Veteran testified at a March 2012 Board video-conference hearing before the undersigned Veterans Law Judge (VLJ). A copy of the hearing transcript is associated with the claims file. This matter was most recently remanded by the Board for further development in June 2020. This matter is again before the Board. An extraschedular TDIU from July 29, 2009 through June 9, 2011 is granted. The Appellant believes that an extraschedular TDIU is warranted. See May 2020 Appellate Brief. A TDIU rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is/was 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 service-connected disabilities, provided at least one service-connected 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, even when the percentage requirements are not met, entitlement to a total rating on an extraschedular basis may nonetheless be granted in exceptional cases, when the veteran is/was unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The benefit of the doubt will be given to the claimant when there is an approximate balance of evidence concerning any material issue in the matter. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. A review of the record shows that from July 29, 2009, through June 9, 2011, the Veteran did not meet the schedular requirements of 38 C.F.R. § 4.16(a). In that regard, the Veteran’s service-connected disabilities combined to a 50 percent disability rating during that period. The Appellant’s appeal was previously referred to the Director of Compensation Service for a decision as to whether a TDIU should be awarded on an extraschedular basis under the provisions of 38 C.F.R. § 4.16(b). See February 2021 VA Memo. Upon review of all the evidence of record, the Board gives the Appellant the benefit of the doubt and finds that from July 29, 2009 through June 9, 2011, the Veteran was unemployable due, at a minimum, to his service-connected lumbar spine disability. The Board initially notes that the Veteran stopped working as an electrician, at the latest, in April 2009. See December 2010 VR&E-General. In September 2011, the Veteran asserted that he had been unable to work ever since April 2009 due to his lumbar spine disability. See September 2011 Form 9. Prior work experience included electronics and being a tax specialist. See December 2010 VR&E-General. He had at most two years of college experience in electronics. See October 2009 VA 21-8947. The evidence of record, summarized below, supports a finding that the Veteran’s service-connected lumbar spine disability was of such severity that it precluded him from securing and/or following gainful employment from July 29, 2009 through June 9, 2011, when taking into account the Veteran’s lumbar spine disability, prior work experience, and educational history. Medical records from July 2009 showed that the lumbar spine disability caused limited range of motion, difficulty straightening up after sitting for too long, difficulty sleeping, and difficulty bending. When the Veteran did work tasks, the pain intensified, and he was required to rest for two or three days. Sometimes the Veteran was bedbound. Then the pain would improve until the next time he did a strenuous task. See January 2010 Medical Treatment Record. Medical records from August 2009 showed that it was very difficult for the Veteran to climb stairs or to stand for 20 to 30 minutes. The lumbar spine disability limited the Veteran’s ability to walk over two blocks, to take part in leisure activities, and resulted in limited range of motion. See December 2009 Medical Treatment Record. The Veteran took as much as two Vicodin at a time for the pain. Pain was aggravated by weight-bearing activities such as prolonged walking, standing, sitting, or driving. See January 2010 Medical Treatment Record. In October 2009, the Veteran reported that due to his lumbar spine disability, he had not been able to work as an electrician because he could not bend, pull wires, or stand for long periods of time. Standing for over 15 to 20 minutes increased the amount of pain the Veteran felt. At that point, the Veteran needed to sit down. He also had to get up from sitting every 30 minutes or his lumbar spine would hurt. He was not able to do a full day’s work at home. He had to stop, take medication, rest, and then start again in the next day or two. When he went shopping, he had to lean on the cart to hold him up. See October 2009 Statement in Support of Claim. In October 2009, the Appellant reported that the Veteran’s lumbar spine disability was so bad that the Veteran did not work, did not hunt, and did not go to the movies or to football games because it hurt him to walk or sit for very long. Riding in a car for 30 minutes really hurt the Veteran. All the Veteran wanted to do because of the pain was to sit in his recliner and take medication. See October 2009 Buddy / Lay Statement. An October 2009 examination found that the Veteran had limited range of motion with pain and had extreme difficulty bending, lifting, pulling, and pushing. The Veteran could only sit for 30 to 60 minutes at a time. There was constant pain. The Veteran had severe lumbar spine flare-ups weekly, which lasted from three to seven days. The flare-ups caused limited mobility and the Veteran would go home, pop pills, and do nothing. See October 2009 VA Examination. A medical record from April 2010 showed that the Veteran was unable to sit, stand, or walk for more than 15 to 30 minutes at a time. He could not do any heavy lifting, bending, twisting, or climbing. An x-ray showed total obliteration of the L5-S1 disc. An MRI showed degenerative and postoperative changes and disc herniation at L4-5 with the disc protruding, causing narrowing of both the right and left L5 nerve root foramen. Pain was not controlled enough with medication to allow the Veteran to do the activities necessary for work. The Veteran was unable to work at any type of job, including a sedentary one. See March 2002 Medical Treatment Record. Medical records from May 2010 showed worsening lumbar spine pain. See December 2010 VR&E-General. The Veteran was likely to miss work more than four times per month. The Veteran would require more breaks than were normally allowed for full-time work. He would need breaks every five minutes, which would last for five to 15 minutes. The lumbar spine disability would constantly interfere with the attention and concentration required to perform simple work-related tasks. The medication caused fatigue, which would impact his ability to work. He could not walk one block without rest or significant pain. He could sit, stand, or walk for only five minutes at a time. He could sit for a total of two hours during an eight-hour workday, and could stand for a total of one hour during an eight-hour work day. This was true since 2009. See December 2020 Medical Treatment Records. Other records from 2010 found that the Veteran could not stand long enough to prepare meals. He had problems with lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, and climbing stairs. He could walk a half block and then needed to rest for 10 to 15 minutes. If he sat, stood, or walked for periods of time, the lumbar spine started to hurt more, and if he continued doing those things for an hour, the pain would get worse and he had to lay down for a few hours. The lumber spine disability was severe. Id.   In June 2010, the Veteran reported that he had daily pain and that medication did not control the pain enough to let him work or enjoy other activities. See June 2010 Statement in Support of Claim. Medical records from October 2010 found no improvement with the Veteran’s lumbar spine pain. See May 2012 CAPRI. In September 2011, the Veteran reported that he could not work at a regular job due to his lumbar spine disability. He could not sit or stand for long and could not bend or stretch without having to stop and take pills to try and control the pain. Doctors felt that he was unemployable and would not be able to work. See September 2011 Form 9. The Board finds the medical evidence above highly probative.  The Board also finds the Veteran and Appellant competent to make the above lay statements.  The Board has no reason to doubt their credibility.  The Board gives the lay statements great probative value.  See Layno v. Brown, 6 Vet. App. 465, 469 (1994).   After having carefully reviewed the record, the Board gives the Appellant the benefit of the doubt and finds that entitlement to an extraschedular TDIU from July 29, 2009 through June 9, 2011, based, at a minimum, on the Veteran’s service-connected lumbar spine disability, has been established under the provisions of 38 C.F.R. § 4.16(b). Specifically, medical evidence found that the Veteran was unable to work at any type of job in 2009 and 2010, and there was no evidence that the Veteran’s lumbar spine disability improved at all during 2011. July 29, 2009 was the date on which an increased rating claim for the service-connected lumbar spine disability was received. The TDIU issue was part and parcel of that claim.   Therefore, an extraschedular TDIU from July 29, 2009 through June 9, 2011 is granted. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Dougan, 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.