Citation Nr: 21024732 Decision Date: 04/26/21 Archive Date: 04/26/21 DOCKET NO. 14-25 631 DATE: April 26, 2021 ORDER Entitlement to an extraschedular total disability evaluation based on individual unemployability (TDIU) due to a service-connected back disability is granted from March 23, 2011. REMANDED Entitlement to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine status post lumbar spinal fusion surgeries (back disability) is remanded. Entitlement to an initial compensable rating for residual scars from back surgery is remanded. FINDING OF FACT The Veteran’s service-connected back disability precludes him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to an extraschedular TDIU are met from March 23, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.3, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from February 1973 to August 1974. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2013 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2017, the Veteran testified before the undersigned Veterans Law Judge at a Board hearing. In April 2018 and March 2020, the Board remanded the matter for further development. Specifically, in March 2020, the Board instructed the RO to obtain an updated examination of the Veteran’s back disability and to assess the severity of his back scars. The Board also instructed the RO to refer the issue of a TDIU to the Director of Compensation Service if he did not meet the schedular requirements for a TDIU. The Board additionally instructed the RO to attempt to obtain, with the Veteran’s assistance, private treatment records from a spine institute. In a March 2020 Statement in Support of Claim, the Veteran notified the VA that he was last treated at the spine institute in 2001 and that there are no current medical records from this provider. In September 2020, the Veteran underwent C&P examinations for his service-connected back and scars disabilities. In December 2020, the Director of Compensation Service issued a memorandum stating that the “evidence as a whole does not show the service[-]connected conditions prevent all forms of substantially gainful employment or that the Veteran would be totally disabled as a result of the service[-]connected conditions. Entitlement to extra-schedular TDIU benefits is not established.” The Board notes that in a November 2017 VA Form 9, the Veteran separately perfected an appeal of the issue of entitlement to an initial rating in excess of 20 percent for a cervical spine disability. The Veteran requested a hearing before the Board concerning that issue. As the requested hearing on that issue has yet to be held, and the Veteran has not withdrawn his hearing request, that issue is not ripe for adjudication. The Board additionally notes that in March 2021, the Veteran filed a new claim for service connection for paralysis, secondary to his service-connected back and neck disabilities. See March 2021 VA Form 21-526EZ; March 2021 Statement in Support of Claim. That issue is still pending adjudication by the RO; therefore, it will not be addressed in this decision. 1. Entitlement to an extraschedular TDIU is granted from March 23, 2011. The Veteran asserts that he cannot secure or follow a substantially gainful occupation due to his service-connected back disability. See Hearing Transcript at 16-17; May 2016 Notice of Disagreement; May 2013 VA Form 21-8940; May 2004 VA Form 21-8940. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the veteran is 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. 38 C.F.R. § 4.16(a). The above notwithstanding, it is the policy of VA that all veterans who are 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). Therefore, if a veteran fails to meet the schedular requirements set forth in 38 C.F.R. § 4.16(a), an extraschedular rating may nevertheless be considered under 38 C.F.R. § 4.16(b) where a veteran is unemployable due to service-connected disabilities. The Board is prohibited from assigning an extraschedular TDIU under 38 C.F.R. § 4.16(b) in the first instance without initially referring the claim to the Director of Compensation Service. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). Here, the Board remanded the claim for such consideration in March 2020, and the Director provided a recommendation against granting a TDIU in December 2020. Although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a) (2012); 38 C.F.R. § 4.16(b)). The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Here, the Veteran’s TDIU claim is part and parcel of his claim for an increased rating for his lumbar spine disability, which was received on March 23, 2011. See Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, the appeal period before the Board is from March 23, 2011, the date the VA received his claim for an increased rating. The Veteran is service-connected for a back disability, rated at 10 percent effective August 14, 1974 and 40 percent effective August 7, 1995; a cervical spine disability, rated 20 percent effective August 5, 2016; bilateral tinnitus, rated at 10 percent effective August 11, 2009; bilateral hearing loss with a noncompensable rating effective August 11, 2009; and residual scars from back surgery with a noncompensable rating effective March 23, 2011. His combined disability evaluation is 10 percent effective August 14, 1974, 40 percent effective August 7, 1995, 50 percent effective August 11, 2009, and 60 percent effective August 5, 2016. Thus, as he has more than one disability, but his combined evaluation is less than 70 percent, and he has never had one disability rated at least 60 percent, he does not meet the schedular criteria for a TDIU at any time during the appeal period. See 38 C.F.R. § 4.16(a). Therefore, the issue becomes whether an extraschedular TDIU is warranted. Regarding the economic component, the Veteran has not worked due to his service-connected back disability since April 1997. See Hearing Transcript at 12; May 2013 VA Form 21-8940; May 2011 VA back examination; May 2004 VA Form 21-8940; July 2003 independent medical evaluation. As the Veteran has not worked since 1997, and therefore has not received income from employment since 1997, the economic component of entitlement to a TDIU is met. See Ray, 31 Vet. App. at 73. Turning to the noneconomic component, the Veteran has a high school GED, one year of college, and training as a diesel mechanic, a telephone technician, and in mental health crisis intervention. See May 2013 VA Form 21-8940; May 2004 VA Form 21-8940; September 2003 SSA Disability Report. His employment history consists primarily of work in the telephone communications industry as a technician and for a brief period in the logging industry, as well as a few other manual labor-type jobs. See Hearing Transcript at 12-14; May 2013 VA Form 21-8940; February 2010 Veteran Correspondence; February 2010 Employer Statement; May 2004 VA Form 21-8940; September 2003 SSA Disability Report. The Veteran’s work as a telephone technician involved climbing telephone poles, crawling under buildings and in attics and other tight spaces where telephone lines would be run, mounting and installing telephone systems, and carrying heavy objects such as tools and other specialized equipment. See September 2003 SSA Disability Report. In the logging industry, the Veteran worked as a choker-setter, which involved attaching cables to fallen logs to be cleared. See February 2010 Veteran Correspondence; February 2010 Employer Statement; February 2010 Website printout. The Veteran’s military occupational specialty was fuel and electrical systems repairman. See DD 214. As the Veteran’s employment history has consisted primarily of manual labor, involving climbing, crawling, physical dexterity, and carrying heavy objects, the Board will focus on how his service-connected back disability affects his ability to perform this type of work. The August 2020 C&P back examiner determined that the Veteran’s service-connected back disability caused chronic pain, limited range of motion, and limited ability to ambulate. The examiner noted that his back condition was productive of pain with heavy, repetitive, or prolonged lifting; high-impact activities; prolonged walking; prolonged standing; or repetitive bending. The examiner further noted that pain sets in after walking only 1-2 blocks or standing longer than 15 minutes. The examiner indicated that the Veteran’s pain and limited range of motion adversely impacted his ability to execute lifting or twisting motions, and severely limited his ability to walk, stand, or drive. An April 2018 letter from the Veteran’s pastor indicates that the Veteran’s back disability prevented him from engaging in ministry or performing the duties of a janitor. The pastor stated that due to his back condition, the Veteran can only be on his feet for brief periods. An April 2018 letter from the Veteran’s spouse indicates that the Veteran cannot sit in the car for “any length of time without being in excruciating pain.” The letter also states that the Veteran requires long periods of rest in bed after only brief periods of standing, walking, or sitting. An April 2018 letter from the Veteran’s sister-in-law indicates that she has observed the Veteran have difficulty with carrying even small, lightweight objects and that he is unable to do tasks around the house. An April 2018 independent Functional Capacity Evaluation report indicates that due to his spine disability, “he is not capable of working on a day to day basis.” See April 2018 Functional Capacity Evaluation report at 3. The report also indicates that he cannot work above shoulder height for longer than 1-2 minutes and requires the assistance of a cane for walking or standing longer than 5 minutes. Id. The report further observed that the longest stretch of sitting he was capable of was 51 minutes and included 4 brief rises. Id. At his January 2017 Board hearing, the Veteran testified that he has difficulty walking up and down stairs, he can stand for no more than 20-30 minutes and can sit for no more than 15-20 minutes, he constantly has to adjust his position and stretch, and on three occasions his back froze up and he had to walk on his hands and knees. See Hearing Transcript at 5-7. He also testified that he can no longer climb telephone poles or carry a tool belt because of his back disability. See id. at 12-18. A March 2016 C&P examination notes that because of his service-connected back disability, the Veteran cannot perform “heavy or repetitive or prolonged lifting, overhead work, running, walking, standing, bending, or squatting.” In a June 2013 letter, the Veteran stated that his back disability limits his ability to walk. A May 2011 VA examination indicates that the Veteran’s service-connected back disability has prevented him from working since 1997. The examination further notes that “he cannot do strenuous activities, cannot run, cannot do prolonged sitting or standing. Cannot lift over 25 pounds.” A September 2010 private medical opinion indicates that due to his back (and neck condition, which was not yet service-connected), the Veteran “certainly is not going to be returning to work.” The foregoing evidence demonstrates that the Veteran’s service-connected back disability, and the residuals of chronic pain and limited range of motion, prevent the Veteran from securing or following substantially gainful employment, especially physically demanding employment consistent with his work history. The Board observes that both medical and lay evidence demonstrates that the Veteran’s service-connected back disability severely limits his ability to walk, stand, sit, climb, or carry heavy objects. The Board emphasizes that this evidence reveals the Veteran is unable to return to the type of physical labor he has performed in the past. In this regard, the Board observes that VA examinations in May 2011, March 2016, and August 2020 noted his back disability was productive of significant limitations in the ability to lift, twist, walk, stand, drive, run, bend, squat, or sit. Moreover, the May 2011 examiner stated that his back disability prevented him from working since 1997. The lay evidence of record, including observations from those who have witnessed the limitations caused by the Veteran’s disability, is consistent with the medical evidence. In addition, the Veteran does not have work experience that is readily applicable to a sedentary occupation based on the ordinary meaning of the term, which the Board broadly defines as white-collar office-type work. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). However, even if he did have experience readily applicable to a sedentary occupation, medical and lay evidence establishes that his back condition severely disrupts his ability to sit for long periods of time. See April 2018 spouse statement; April 2018 Functional Capacity Evaluation report at 3; Hearing Transcript at 5-7; May 2011 VA examination. Accordingly, the Board finds that a preponderance of the evidence demonstrates that the Veteran is prevented from following or securing substantially gainful employment due to his service-connected back disability. Thus, an extraschedular TDIU is warranted from March 23, 2011. REASONS FOR REMAND 2. Entitlement to a rating in excess of 40 percent for a back disability is remanded. The Board’s March 2020 remand instructed the examiner to “discuss whether the Veteran’s symptomatology during flare-ups is tantamount to ankylosis, given his reports that during flare-ups he is unable to bend or move and has to ‘walk on [his] hands and knees;’ and if so, whether it is favorable or unfavorable.” See March 2020 Board remand at 4, para. 3(c). The August 2020 examiner, unfortunately, did not discuss this issue in the examination report. As addressing this issue is critical to whether the Veteran is entitled to a higher rating for his back disability, remand is necessary to obtain an addendum opinion. See Stegall v. West, 11 Vet. App. 268 (1998) (a remand confers upon the claimant, as a matter of law, the right to substantial compliance with the remand directives); Chavis v. McDonough, 2021 U.S. App. Vet. Claims LEXIS 660 (Apr. 16, 2021). Updated VA and private treatment records should also be secured. 3. Entitlement to an initial compensable rating for residual scars from back surgery is remanded. Pursuant to the Board’s March 2020 remand, the Veteran underwent a C&P examination of his scars in August 2020. The examiner observed that the scars were neither painful nor unstable. The examiner, however, did not comment on a June 2020 VA treatment note indicating that the Veteran reported pain “centered over the middle of his prior surgical scar.” The examiner also did not comment on the March 2019 C&P back examination indicating that the Veteran “consistently” reported pain originating from the “general upper area of surgical scarring.” Thus, remand is warranted to obtain an addendum opinion regarding this conflicting medical evidence. Updated VA and private treatment records should also be secured. The matters are REMANDED for the following action: 1. Obtain any outstanding VA treatment records. 2. With any necessary assistance from the Veteran, secure outstanding relevant private treatment records. 3. Then obtain an addendum opinion regarding the Veteran’s back disability and associated scarring from the same examiner who conducted the August 2020 examination, or another examiner if unavailable. A new examination is not needed unless otherwise indicated by the examiner. The entire claims file must be made available to the examiner. After reviewing the claims file, the examiner must: (a). Discuss whether the Veteran’s symptomatology during flare-ups is tantamount to ankylosis, given his reports that during flare-ups he is unable to bend or move and has to ‘walk on [his] hands and knees;’ and if so, whether it is favorable or unfavorable. See January 2016 Board Hearing at 7. (b). Reconcile the discrepancy between the August 2020 examination report describing the Veteran’s scars as neither painful nor unstable with the Veteran’s report of pain in the area of his spine scars and other conflicting evidence of record, specifically (1) a June 2020 VA treatment note indicating that the Veteran reported pain “centered over the middle of his prior surgical scar;” and (2) the March 2019 C&P back examination report indicating that the Veteran “consistently” reported pain originating from the “general upper area of surgical scarring,” but ultimately concluding the Veteran did not have painful scars. If the examiner believes a new examination is necessary based on this conflicting medical evidence, arrangements must be made to schedule a new examination. A complete rationale must be provided for all opinions expressed. Failure to do so will render the opinion inadequate. If the requested opinion cannot be provided without resort to speculation, the examiner should so state and explain why an opinion would be speculative. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. deBruyn, 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.