Citation Nr: 21025288 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 18-05 783A DATE: April 27, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted from May 31, 2017 onward. REMANDED The issue of entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 31, 2017 is remanded. VETERAN’S CONTENTIONS The Veteran contends that his service-connected disabilities render him unable to obtain or maintain substantially gainful employment, entitling him to a TDIU. FINDING OF FACT The Veteran's service-connected disabilities precluded him from obtaining or maintaining a substantially gainful occupation from May 31, 2017 onward. CONCLUSION OF LAW The criteria for a TDIU are met from May 31, 2017 onward. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1956 to September 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO in Boise, Illinois. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in April 2019 and a transcript of the hearing has been associated with the claims file. This matter was previously before the Board in January 2021 at which time it was remanded for further development. Entitlement to a total disability rating based on individual unemployability (TDIU) from May 31, 2017 onward A TDIU is granted where a veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; 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 following will be considered as one disability for the purpose of meeting the foregoing rating requirements: (1) disabilities of one or both upper or lower or one or both lower extremities, including the bilateral factor if applicable; (2) disabilities resulting from a common etiology or a single accident; (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; (4) multiple injuries incurred in action; or, (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16 (a). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341 (a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). At the outset, the Board notes that the Veteran meets the schedular requirements for a TDIU from May 31, 2017 onward. Service connection has been established for lumbar disc disease with spinal stenosis status post laminectomy rated as 10 percent disabling; radiculopathy, right lower extremity (femoral nerve) rated as 20 percent disabling; radiculopathy, left lower extremity (femoral nerve) rated as 30 percent disabling; bilateral hearing loss rated as 10 percent disabling; tinnitus rated as 10 percent disabling; and laminectomy scar, low back rated as 10 percent disabling; The Veteran's combined schedular rating is 70 percent or greater with at least one disability ratable at 40 percent or more (after considering disabilities affecting a single body system); thus the Veteran meets the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). After reviewing the evidence of record, the Board finds that the Veteran has been unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities since May 31, 2017. The record reflects that the Veteran earned a high school diploma. His DD Form 214 indicated that his military occupational specialty (MOS) was motor boat operator. Since service, the Veteran reported primary employment working as a maintenance mechanic. The Veteran also reported volunteering at a local Fire Department. Regarding his ability to obtain and maintain substantially gainful employment, the Veteran indicated on his January 2021 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, that his lumbar degenerative joint disease with stenosis, right and left lower extremity radiculopathy of the sciatic and femoral nerves, and right and left hip disabilities prevent him from securing or following any substantially gainful occupation. He further indicated that he last worked full time and became too disabled to work on December 31, 1996. He also indicated in a February 2021 VA Form 21-4138 that he still attends meetings for the local Fire Department but is physically unable to help because of his age and health. The Veteran testified during the April 2019 Board hearing regarding his low back disability’s impact on his daily functioning. Specifically, the Veteran testified that his low back disability limits his ability to pick things up, move quickly, or walk long distances. He further testified that he experiences leg cramping and flare-ups after sitting down; such flare-ups are alleviated with rest. Turning to the medical evidence of record, a May 2017 VA examiner opined that the Veteran’s hearing loss impacts ordinary conditions of daily life, including the ability to work, as the Veteran reported that it was hard to hear with noise and hard to hear conversations. A separate May 2017 VA examiner also opined that the Veteran’s thoracolumbar spine disability impacted his ability to work. The examiner reasoned that the thoracolumbar disability reduces the Veteran’s ability to stand and walk for prolonged periods and his ability to do heavy lifting. A November 2018 VA examiner opined that the Veteran’s right knee disability impacts his ability to work. The examiner reasoned that the right knee disability reduces the ability to do prolonged standing, or walking. An October 2020 VA examiner opined that the Veteran’s thoracolumbar spine condition impacts his ability to work. The examiner reasoned that the Veteran has difficulty performing weight bearing activities. A January 2021 VA examiner opined that the Veteran’s peripheral nerve disability impacts his ability to work. The examiner reasoned that the Veteran has difficulty with standing and walking long periods, driving long distances, and/or sitting at a desk for long periods due to pain, weakness, numbness/tingling and paresthesias of both lower extremities that causes the Veteran to frequently reposition and shift his weight all of which decrease productivity and efficiency. A January 2021 VA examiner opined that the Veteran’s low back disability impacts his ability to work. The examiner reasoned that the Veteran is limited in bending, stooping, pushing, pulling, carrying, hauling, running, standing, sitting, walking, climbing, squatting, and standing/walking/driving long periods. The examiner further reasoned that the impact on the Veteran’s lifting ability is moderate to severe limitation in use of axial skeleton. A January 2021 VA examiner opined that the Veteran’s hip disabilities impact his ability to work. The examiner reasoned that the Veteran is limited in climbing, running, bending, sitting, stooping, squatting, and standing for long period of time. In light of the foregoing, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran has been unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities from May 31, 2017 onward. The Veteran’s entire occupational history has consisted of performing tasks which are physical in nature and his service-connected disabilities interfere with the ability to perform physical tasks and would also significantly interfere with his ability to adequately perform in a sedentary setting. Accordingly, a TDIU is warranted. The Board acknowledges that an August 2017 VA examiner opined that the Veteran’s right knee and hips did not impact his ability to work. However, the examiner did not provide a rationale for these opinions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning, and neither an examination report nor a medical opinion is entitled to any weight if it contains only data and conclusions). REASONS FOR REMAND Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 31, 2017 is remanded. A TDIU may be assigned, if 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16 (a). Here, prior to May 31, 2017, the Veteran was service connected for lumbar disc disease with spinal stenosis status post laminectomy rated as 10 percent disabling; radiculopathy, left lower extremity (femoral nerve) rated as 30 percent disabling; bilateral hearing loss rated as 10 percent disabling; tinnitus rated as 10 percent disabling; and laminectomy scar, low back rated as 10 percent disabling. As the Veteran did not have one disability ratable of 60 percent or more or a combined rating of 70 percent with at least one disability ratable at 40 percent or more, he did not meet the threshold requirements for TDIU under 38 C.F.R. § 4.16(a) prior to May 31, 2017. However, where the percentage requirements for a schedular TDIU are not met, entitlement to the benefits on an extraschedular basis may be considered where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. See 38 C.F.R. § 4.16(b). In this regard, as stated above, the Veteran indicated on his January 2021 VA Form 21-8940 Veteran’s Application for Increased Compensation Based on Unemployability that his lumbar degenerative joint disease with stenosis, right and left lower extremity radiculopathy of the sciatic and femoral nerves, and right and left hip disabilities prevented him from securing or following any substantially gainful occupation. He further indicated that he last worked full time and became too disabled to work on December 31, 1996. Given that the record reflects that the Veteran's service-connected disabilities may have presented an exceptional disability picture and may have prevented him from obtaining or maintaining substantially gainful employment, the Board finds that the case should be referred to the Director of Compensation & Pension Service for extraschedular consideration. 38 C.F.R. § 4.16(b) (rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards.) Along with the claims file, a full statement should be provided that includes the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and any other factors having a bearing on the issue. Id. The matters are REMANDED for the following action: Refer the issue of entitlement to a TDIU prior to May 31, 2017 to the Director, Compensation Service, for extra-schedular consideration. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Smith-Jennings, 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.