Citation Nr: 21025656 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 09-35 198 DATE: April 28, 2021 ORDER Entitlement to a rating of total disability based on individual unemployability (TDIU) is granted, effective August 3, 2009. FINDING OF FACT Resolving all reasonable doubt in the Veteran’s favor, the Veteran’s service-connected low back and right ankle disabilities, in combination, render him unable to maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a rating of total disability based on individual unemployability have been met as of August 3, 2009. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from October 1962 to October 1966. This case comes before the Board with a lengthy procedural history. The Veteran filed a claim for TDIU in April 2008. That claim was denied in an October 2008 rating decision. The Veteran filed a timely notice of disagreement, and the claim ultimately came before the Board in March 2014. At that time, the Board remanded the issue as it was inextricably intertwined with other issues that were also on remand. The matter came before the Board again in February 2015 and was once again remanded along with inextricably intertwined issues. Then, in December 2016, the Board denied entitlement to a TDIU, while at the same time denying entitlement to service connection for a cervical spine disability. The Veteran appealed the decision to the United States Court of Appeals for Veterans Claims (Court). In May 2018, the Court approved a joint motion for remand (JMR) between the Veteran and VA. In the JMR, the parties agreed that the Board had erred in its decision denying the claim for service connection for a cervical spine disability. The JMR did not specifically address any faults in the TDIU decision, except to note that it was inextricably intertwined with the cervical spine issue and needed to be remanded as well. The case was returned to the Board in December 2018, at which time, the Board remanded both the cervical spine issue and TDIU. The case came before the Board once again in June 2020, with both issues—service connection for a cervical spine disability and TDIU—still on appeal. At that time, the Board denied service connection for a cervical spine disability. However, the Board noted that the Veteran had been unemployed since 2007, and that there was competent evidence to suggest his service-connected right ankle and low back disabilities prevented him from maintaining substantially gainful employment. Since the Veteran did not meet the schedular requirements for a TDIU, the Board remanded the issue of entitlement to a TDIU with instructions to the agency of original jurisdiction (AOJ) to refer the matter to the VA Director of Compensation Services for extraschedular consideration. See 38 C.F.R. § 4.16(b). After referring the matter, the AOJ continued the denial of a TDIU in a February 2021 supplemental statement of the case. Thus, the matter of entitlement to a TDIU is before the Board once again as the sole issue on appeal. The Board also notes that the Veteran testified before a Veterans Law Judge (VLJ) in March 2014. That VLJ is no longer with the Board. The Veteran was informed of this fact in August 2016; he was offered the opportunity to testify at a new hearing but declined that offer. Therefore, the Board proceeds based on a transcript of the March 2014 hearing. 1. Entitlement to a rating of total disability based on individual unemployability It is the established policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. See 38 C.F.R. § 4.16. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his or her age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A total disability rating for compensation may be assigned where 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, this disability shall be ratable at 60 percent or more. If there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and the combined rating must be 70 percent or more. See 38 C.F.R. § 4.16(a). For consideration under these provisions, disabilities resulting from common etiology or a single accident will be evaluated as one disability. Id. Pursuant to 38 C.F.R. § 4.16(b), when a claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for eligibility for a total rating set forth in 38 C.F.R. § 4.16(a), such case shall be submitted for extraschedular consideration. The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to his or her service-connected disabilities, but the functional impairment caused solely by his or her service-connected disabilities. At the time the Veteran filed his April 2008 claim, he was in receipt of service-connection for only for a right ankle condition at a rating of 20 percent. In August 2009, the Veteran filed a claim for service connection for a low back disability that was ultimately granted. That disability was rated at 10 percent from the date of the claim until February 2021. As of February 2021, it has been rated at 20 percent. Based on these disabilities, from April 2008 to August 2009, the Veteran’s combined disability rating was 20 percent. From August 2009 to February 2021, the combined disability rating was 30 percent. Since February 2021, the combined disability rating has been 40 percent. Therefore, the Veteran has not been schedularly eligible for TDIU under 38 C.F.R.§ 4.16(a) at any point during this period. Accordingly, in June 2020, the Board remanded the claim to instruct the AOJ to refer the issue for extraschedular consideration. In September 2020, the Director of Compensation Services reviewed the claim and issued a memorandum recommending against entitlement to an extraschedular TDIU. However, the Board is not bound by this decision and reviews the claim on a de novo basis to make its own determination. At issue, then, is whether the Veteran has been unable to secure or follow a substantially gainful occupation solely due to service-connected disabilities. The phrase “unable to secure and follow a substantially gainful occupation” contains both economic and noneconomic components. The economic component requires a determination as to whether a Veteran’s income exceeds the poverty threshold. The noneconomic component requires a determination as to a Veteran’s ability to secure and follow such employment. With regard to the latter component, attention should be given to the Veteran’s history, education, skill, and training. Consideration should also be given to both the Veteran’s physical and mental abilities. From a physical standpoint, possible relevant factors include the Veteran’s limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. Regarding the Veteran’s mental ability, possible relevant factors include limitations as to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. See Ray v. Wilkie, 31 Vet. App. 58 (2019). In determining whether unemployability exists, consideration should not be given to the Veteran’s age or to any impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, the evidence demonstrates that the Veteran was last employed as a welder in November 2007. Thus, throughout the period on appeal his income has not exceeded the poverty line and he has met the economic component of being unable to follow a substantially gainful occupation. Therefore, the Board must look to the noneconomic component of the issue. The record shows that the Veteran initially applied for disability benefits with the Social Security Administration (SSA) in November 2005. At the time, the Veteran alleged that he was unable to work primarily because of a seizure disorder, with further limitations due to right knee and right ankle disabilities. Records from that filing show that the Veteran had completed school through the 10th grade and had later completed a General Education Development (GED) certification. He had worked for the same company as a welder from 1986 to 2001, then spent six months as a laborer, followed by additional jobs as a welder until he was no longer able to work. The SSA ultimately denied the Veteran’s claim, explaining that, although he was precluded from performing his past work, he was still able to perform some types of work. Notably, during his SSA evaluation, the Veteran reported that he had sprained an ankle, and that it had been in a cast for two months, but reported that it was “not a problem.” However, the Veteran filed a claim for an increased rating of his ankle disability in May 2007. In June 2007 VA treatment, the Veteran reported that he had last worked in April 2007 until his knees and ankles prevented him from continuing to work. In January 2008 treatment, he reported that his right ankle hurt all the time, but was worst in the morning. He was assessed with chronic ankle pain. His physician provided him with a night splint as well as a lace-up style ankle brace to wear when active. The Veteran then underwent a VA examination in May 2008. There, he reported that his right ankle pain was continuous. He also reported associated weakness, swelling, instability, and fatigability. He acknowledged that the pain was better with the use of medications. The Veteran stated that he was not able to walk for more than two blocks and was not able to stand for greater than 10 minutes at a time. He also described not being able to perform strenuous labor such as lawn care. In the May 2008 examination report, the examiner did not address the functional impact of the right ankle disability on the Veteran’s ability to work. However, in September 2013 and April 2014 right ankle examinations, the examiners reported that the right ankle disability did not impact the Veteran’s ability to work. The Board finds that these opinions are supported by the record and the Veteran’s responses in the May 2008 examination. Indeed, although the Veteran’s ankle condition caused pain and discomfort, it did not, on its own, render the Veteran unable to work. The Veteran was still able to walk for some distance and to stand for some period of time. Although he was unable to perform strenuous work, the evidence does not support the conclusion that he was completely unable to work due to the right ankle disability at that time. After consideration of the entire record, however, the Board finds that a TDIU is warranted from August 3, 2009—the date the Veteran’s low back disability became service-connected. A June 2009 MRI report from the Veteran’s private physician, Dr. W.S., demonstrated disc degeneration and small disc protrusions to the left side at L4-5 and L5-S1 with mild impingement. The imaging also showed facet joint hypertrophy at L3-4 and mild bulging of the disc annulus at L2-3. Thus, as of at least June 2009, the Veteran’s low back disability impacted nearly his entire lumbar spine. At a June 2010 VA joints examination, the Veteran reported a sharp pain in the lower back that was at a constant level of 8 out of 10. He described low back stiffness and explained that he would notice numbness in his legs and feet bilaterally when standing for more than 20 minutes. The examiner also noted that the Veteran’s primary care physician had indicated on more than one occasion that the Veteran was reluctant to use prescribed hydrocodone for the back condition because it put him to sleep. Further evidence demonstrates that the Veteran’s low back disability resulted in difficulty walking and bending during flare-ups. He was also prescribed a back brace to limit back mobility and to support weakened muscles. Dr. W.S. noted over the course of multiple visits that the Veteran’s low back pain was aggravated by lifting or sitting for long periods of time. During these visits, the Veteran was also noted to have moderate-to-severe muscle spasms bilaterally along the paraspinous muscles from L3 to L5. Treatment records and VA examinations show that the Veteran’s low back condition and right ankle condition have continued to worsen since the Veteran’s TDIU claim. As of a February 2021 examination, the Veteran required a cane or walker to ambulate, had suffered numerous falls, and had significant instability due to his back and right ankle disabilities. Most recently, in March 2021, Dr. W.S. opined that the Veteran should be considered 100 percent disabled due to his low back disability. Thus, whereas the Veteran’s right ankle disability did not, on its own, preclude the Veteran from maintaining any substantially gainful employment, the combined effects of the right ankle and low back disability have. First, the Board notes that the Veteran’s education and employment history would likely limit him to jobs that require some physical activity. The right ankle disability, on its own, would not necessarily have made this impossible. Although slowed, the Veteran was shown to be capable of some aspects of physical work. However, from the initial time of service connection, the Veteran’s low back disability appears to have made most physical activity untenable. Indeed, the fact that standing for more than 20 minutes would result in not just stiffness but also numbness of the lower extremities indicates that most jobs of even mild physical exertion might be impossible to perform. Moreover, the evidence later suggests that the Veteran’s back pain would be additionally aggravated by sitting for long periods of time. Based on this evidence, the Veteran’s low back disability, combined with his right ankle disability, would significantly impair the Veteran in any job that required walking, standing, bending, or sitting for any length of time. The March 2021 statement from Dr. W.S. further supports that the Veteran’s combined disabilities rendered him unable to work. Given the progressive nature of the Veteran’s low back and ankle disabilities, it is difficult to pinpoint an exact date on which they rendered the Veteran unemployable. Therefore, the Board again resolves all reasonable doubt in the Veteran’s favor to find an effective date of August 3, 2009, the date the Veteran’s low back disability became service connected. Accordingly, entitlement to a TDIU on an extraschedular basis is granted from August 3, 2009. V. Chiappetta Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Giaquinto, 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.