Citation Nr: 21026210 Decision Date: 04/30/21 Archive Date: 04/30/21 DOCKET NO. 12-20 754A DATE: April 30, 2021 ORDER Entitlement to service connection for a back disability is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to December 9, 2015 is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran’s back disability began during active service, or is otherwise related to an in-service injury or disease. 2. The Veteran’s service-connected disabilities render him incapable of obtaining and maintaining gainful employment consistent with his education and occupational experience prior to December 9, 2015. CONCLUSIONS OF LAW 1. The criteria for service connection for a back disability are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a TDIU prior to December 9, 2015 have been met.  38 U.S.C. § 1155; 38 C.F.R. § 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1978 to October 1982 in the United States Army. In July 2020, the Board remanded the claims for additional development. There has been substantial compliance with the remand in connection with claims decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for a back disability The Veteran contends that he has a lumbar spine condition that has existed since sustaining an in-service injury and/or falling down stairs during active duty service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of lumbar degenerative disc disease, spondylosis, and associated sciatica, and evidence shows that the in-service occurred, the preponderance of the evidence is against finding that the Veteran’s diagnosis of lumbar degenerative disc disease, spondylosis, and associated sciatica began during service or is otherwise related to an in-service injury, event, or disease. The Veteran’s service treatment records (STRs) include the report of a November 1978 back x-ray that showed no abnormality. The clinical history was a history of “legs collapsing.” April 1979 entries detail a history of back pain after picking up a heavy object the day before. Four days later, the Veteran complained of pain of two weeks duration; the assessment was lumbar strain. A March 1979 record documented treatment in connection with a fall on the knee. The Board remanded the claim to obtain an adequate medical opinion. The Board previously determined that a January 2020 VA opinion was inadequate and the conclusion will not be discussed here. In a July 2020 VA opinion obtained after the most recent remand, the examiner concluded that the Veteran’s lumbar spine conditions are not at least as likely as not related to an in-service injury, event, or disease, including the Veteran’s in-service low back injury. The examiner noted that the Veteran had documentation of a back problem during service, in 1979, “which was self limited.” There was documentation in 2003 of onset of back pain: “43 yr old male with low back pain for about a month……. He states onset a few days after working at a dock unloading boxes.” X-rays were normal, and degenerative joint disease was showed in 2012. The examiner specifically considered the Veteran’s assertion that he has been having back problems since the initial complaint in 1979 but concluded that “is unlikely.” As rationale, the examiner said “[i]t is unlikely that having an injury in 1979 his X-rays in 2003 are normal, because in more than 2 decades post injury the natural progression is having some type of degeneration related to the trauma or injury. Therefore opinion is not base solely in lack of continuity or documented chronicity. It is based on lack of clinical evidence supporting this.” The Board finds that opinion probative. The examiner noted that the development of the Veteran’s back disability is not consistent with an etiology connected to the in-service low back injury, because the natural progression of the current lumbar spine condition would have included objective signs of degeneration at the time of the Veteran’s 2003 treatment; in light of the two-decade proximity to the injury. The examiner’s opinion is based on an accurate medical history and provides an explanation that contains clear conclusions and supporting data. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). The Veteran believes his lumbar spine conditions are related to an in-service injury, event, or disease; however, he is not competent to provide a nexus opinion here. Rhe diagnosis and etiology of the back disability is outside the realm of common knowledge of a lay person because it involves complex medical issues that go beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428 (2011); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 2. Entitlement to a TDIU on an extraschedular basis prior to December 9, 2015 VA will grant TDIU when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities.  38 C.F.R. §§ 3.340, 3.341, 4.16. For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word “substantially” suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The central inquiry in a claim for TDIU 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination.  38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this case, the Veteran does not meet the schedular criteria for consideration of a TDIU under 38 C.F.R. § 4.16(a) prior to December 9, 2015. The Veteran was only service-connected for depressive and anxiety disorder rated 50 percent. Pursuant to the July 2020 remand, the claim was submitted to the Director of Compensation and Pension Services (Director) for extraschedular consideration under 38 C.F.R. § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1 (2001); Wages v. McDonald, 27 Vet. App. 233 (2015). In a January 2021 opinion, the Director denied entitlement to a TDIU on an extraschedular basis. The initial extraschedular referral decision under 38 C.F.R. § 4.16(b) addresses whether there’s sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58 (2019). Although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director’s decision or otherwise limited in its scope of review that determination. Wages, 27 Vet. App. 233; Ray, 31 Vet. App. at 66. The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed.  38 C.F.R. § 4.16(b). The Board finds that the evidence supports entitlement to a TDIU on an extraschedular basis prior to December 9, 2015. The evidence of record indicates that the Veteran graduated from high school, had no further training, had a work history as a window cleaner and had not worked full time since 2003. The Board finds that, resolving reasonable doubt in the Veteran’s favor, his service-connected PTSD alone prevented him from obtaining substantially gainful employment prior to December 9, 2015. The available medical evidence for that period includes an August 2010 private psychological evaluation, April 2012 VA psychological examination, and VA treatment records. The Board notes that while the Veteran’s treatment records include descriptions of his depressive and anxiety disorder symptoms and mental health appointments, there is no specific discussion regarding the impact of his depressive and anxiety disorder on his employment capacity. The August 2010 private evaluation notes that the Veteran left his last job after falling three stories, which the Veteran said was the fault of an “enemy that cut his scaffolding rope” although there was never proof. This evaluation further notes that the Veteran “does report interpersonal problems on the job constantly…‘hates being around people’…[and] emotional factors contributed to his leaving jobs.” While the private evaluation does not make a specific finding as to the functional impact of the condition on the Veteran’s capacity for employment, the Board finds significance in the descriptions of the symptoms identified by the provider. Notably, the provider states interpersonal relationships are impacted by instability, detachment, obsessiveness, paranoia, and anger, as well as feelings of harm towards others and a history of assault. Furthermore, even though his last job ended due to a fall, the Veteran own statements indicate he believes it was the deliberate work of an “enemy” amongst his coworkers. The Board finds this underscores the significance of the impact of symptoms such as paranoia, obsessiveness, and anger. The April 2012 VA psychological examination characterizes the severity of the Veteran’s condition as manifesting with occupational and social impairment with reduced reliability. Notably, the examiner cited symptoms of difficulty establishing and maintaining effective work relationships and difficulty in adapting to stressful circumstances, including work or worklike settings. The examination did not include any further discussion of the impact of the condition on the Veteran’s ability to work. The Board finds that the evidence of record is at least in equipoise as to whether the Veteran’s service-connected depressive and anxiety disorder prevented him from obtaining or maintaining substantially gainful employment prior to December 9, 2015. While the April 2012 VA examination does not include all of the symptoms identified in the private evaluation, the noted difficulties with establishing and maintaining work relationships and adapting to stressful work environments are approximated in the August 2010 private examiner’s descriptions of the various impediments to interpersonal skills and relationships. Furthermore, the Board finds that the symptoms and overall disability picture identified in the VA psychological examinations for the period beginning December 9, 2015, the basis for the current TDIU entitlement, indicates an overall similar impact on employability as demonstrated by the August 2010 private evaluation. The only significant difference are auditory hallucinations, which first manifested beginning December 9, 2015. However, the Board finds that auditory hallucinations were not determinative of the Veteran’s initial TDIU entitlement. When considering the evidence in its totality, in terms of TDIU entitlement, the Board finds that the only substantial difference between the pre and post December 9, 2015 periods is the schedular rating. Therefore, entitlement to a TDIU on an extraschedular basis prior to December 9, 2015 is warranted. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P.S. McLeod 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.