Citation Nr: 21027121 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 14-06 757 DATE: May 4, 2021 ORDER A total disability rating based on individual unemployability (TDIU) from November 23, 2004, to March 6, 2008, pursuant to 38 C.F.R. § 4.16(b), is granted. FINDING OF FACT From November 23, 2004, (the date of the award for the grant of service connection for the low back disability), to March 6, 2008, the evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. CONCLUSION OF LAW The criteria for a TDIU, from November 23, 2004, to March 6, 2008, pursuant to 38 C.F.R. § 4.16(b), have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 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 from June 1980 to June 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Appeals Management Center (AMC). In the April 2012 rating decision, the AMC implemented an award of service connection for a low back disability and assigned a 20 percent rating effective November 23, 2004. The Veteran timely appealed the April 2012 rating decision. In a March 2015 rating decision, while an appeal of the rating assigned for the low back in the April 2012 decision was pending, the VA Regional Office (RO) granted a TDIU, effective May 30, 2014. In a July 2015 remand, the Board determined that the issue of a TDIU prior to May 30, 2014, was properly on appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) and AB v. Brown, 6 Vet. App. 35 (1993). In November 2015, while the appeal was pending, the RO awarded a TDIU effective from March 7, 2008. In May 2020 and November 2020, the Board remanded the issue of a TDIU prior March 7, 2008, for additional development. Specifically in November 2020, the Board remanded the appeal for referral to the Director of the Compensation for consideration of whether a TDIU was warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) prior to March 7, 2008. TDIU Total disability ratings 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 as 60 percent or more, and if there are two or more 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). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. 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. Id. Factors such as employment history, as well as educational and vocational attainments, are for consideration. Id. 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). In 2019, the U.S. Court of Appeals for Veterans Claims (CAVC) held that substantially gainful employment, in the TDIU context, contains economic and noneconomic components; the economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person, while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). The CAVC also provided guidance as to the meaning of a veteran's ability to secure and follow such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. A TDIU prior to March 7, 2008. The RO awarded a TDIU effective from the date the Veteran first satisfied the schedular requirements for a TDIU pursuant to 38 C.F.R. §§ 3.340 and 4.16(a), which was March 7, 2008. In July 2015, the Board determined that a TDIU had been raised by the record at the time of the April 2012 rating decision, which, in pertinent part, established service connection for the low back disability, effective November 23, 2004, the date of the Veteran's claim. Thus, the question becomes whether the Veteran is entitled to a TDIU from November 23, 2004, to March 7, 2008. The TDIU claim was part and parcel of the increased rating claim for the low back disability. See Harper v. Wilkie, 30 Vet. App. 356, 361-62 (2018) (confirming that when the issue of entitlement to a TDIU is raised as part and parcel of a rating claim, it should be treated separately from a formal claim for TDIU in all aspects of the appeal). The earliest a TDIU may be awarded in this case is November 23, 2004, as that is the date of the grant of service connection for the low back disability. 38 U.S.C. § 5110 (b)(2) (prior to 2012); 38 C.F.R. § 3.400 (o)(2). Prior to March 7, 2008, the Veteran's service-connected disabilities included right knee degenerative joint disease (rated as 10 percent disabling from January 10, 2001; 20 percent from August 27, 2003; 30 percent from March 7, 2008); graft site scar of the right lower extremity (rated as zero percent disabling from January 10, 2001; 10 percent from March 31, 2004; and 20 percent from May 30, 2014) bilateral hearing loss (rated as noncompensable from January 10, 2001); a low back disability (rated as 20 percent disabling from November 23, 2004); right lower extremity radiculopathy of the sciatic nerve (rated as 10 percent disabling from November 23, 2004); and left lower extremity neurological deficits (rated as 10 percent disabling from June 27, 2007). Prior to March 7, 2008, the Veteran's overall combined rating was 10 percent from January 10, 2001; 20 percent from August 27, 2003; 30 percent from March 31, 2004; 50 percent from November 23, 2004; and 60 percent from June 27, 2007. The Veteran does not currently meet the schedular requirements for entitlement to individual unemployability prior to March 7, 2008. A TDIU may also be awarded on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Under 38 C.F.R. § 4.16(b), all cases where a veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability should be referred to the Director of Compensation. Therefore, in November 2020, the Board remanded the claim of a TDIU to the RO for referral to the Director of Compensation for a determination on whether the Veteran was entitled to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) prior to March 7, 2008. In February 2021, the Director of Compensation rendered an advisory opinion regarding extraschedular consideration for a TDIU under 38 C.F.R. § 4.16(b) prior to March 7, 2008. The Director of Compensation found that although the Veteran had severe pain due to his service-connected disabilities, he did not have restrictions of activities of daily living and that the evidence did not show that his service-connected disabilities prohibited him from obtaining or maintaining gainful employment. Although the Board is required to obtain an opinion from the Director of Compensation before awarding an extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's opinion or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)). Thus, as the issue of a TDIU pursuant to 38 C.F.R. § 4.16(b) prior to March 7, 2008, has been remanded and referred to the Director and an opinion was rendered on the matter, the issue is now before the Board and must be addressed on the merits. Cf. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) ("[T]here is no restriction on the Board's ability to review the denial of an extraschedular rating [under 38 C.F.R. § 3.321(b)(1)] on appeal"). Turning to the evidence, the Veteran claims that he was unable to obtain or maintain gainful employment due to his service-connected disabilities, specifically his service-connected leg, back, and medications required to treat his service-connected disabilities. See Dr. R.F.'s statement (August 2005); VA 21-8940 Veteran's Application for Increased Compensation based on Unemployability (March 2015). For the following reasons, from November 23, 2004, to March 6, 2008, the evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment consistent with his education and occupational experience. The Veteran has been unemployed since 2000 or 2001. See, e.g., VA examination report (June 2005). The evidence shows that the Veteran had limited occupational experience and education, as he was previously employed in sales, worked for a supply company, and was self-employed for three years as a taxi driver until 2000 or 2001. Id. He has a high school degree. The Veteran consistently reported that he was unable to work due to the severity of his service-connected low back and leg disabilities, such as his radiculopathy. See, e.g., Veteran's statement (October 2006). In November 2006 statements, the Veteran's brother and sister reported that the Veteran was unable work due to his back and leg pain and that he required the assistance of others due to his back and leg pain. Specifically, the Veteran's sister indicated that the Veteran had a severe limp when walking due to his low back and leg disabilities and that she and her other sister hep the Veteran with day to day functions. The medical evidence reveals that since at least November 23, 2004, the Veteran reported during VA examinations and VA treatment visits that his right knee gave way; he stated that he had right knee pain, severe low back pain, constant low back pain, severe leg pain, paralumbar spasms, and low back flare-ups. See VA examination reports (January 2004; March 2004; June 2005). He stated that he had low back flare-ups that occurred daily and lasted for thirty minutes; he indicated that he had additional limitation of motion and functional impairment during low back flare-ups. See VA examination report (June 2005). He stated that he had difficulty standing, walking, lifting, and bending. He reported that he had increased back pain on long drives. Id. He stated that he required the assistance of a rolling walker and right knee support. Upon physical examinations, he had limitation of motion of the right knee, limitation of motion of the low back, and decreased sensation in the right leg. See VA examination reports (January 2004)(where flexion of the lumbar spine was limited to 60 degrees). Notably, he had "extreme" sensitivity to light to touch on his back. See VA examination reports (June 2005) The March 2004 VA joints examination shows that the VA examiner noted that the Veteran "could barely walk" at the time of the examination. The examiner also indicated that the Veteran had back pain that worsen due to his abnormal gait and difficulty walking. During the June 2005 VA back examination, the examiner noted that the Veteran was unable to complete the examination, as he had severe low back pain and that he was uncomfortable lying down or sitting. During a March 2008 Board hearing, the Veteran indicated that he received back treatments and pain medication every three to six months due to his low back disability. In sum, the evidence shows that the Veteran had limited occupational experience and education; he was lasted employed in 2000 or 2001 as a taxi driver, which required prolonged sitting. The Veteran's other prior work experience, such as working at a sales company, likely involved some physical labor, and not sedentary work. The Board finds that the Veteran would be limited in physical and sedentary employment due to service-connected disabilities. For example with respect to sedentary employment, the Veteran's lay and medical history reflects that he has a longstanding history of low back, right knee, and leg pain that caused limitation of motion, flare ups, and increased pain with prolonged sitting, as he specifically reported that he had low back pain on long drives. Additionally, he required the assistance of a rolling walker due to his service-connected disabilities. To this extent, the Veteran was previously employed as a taxi driver; thus, he would be unable to pursue a similar occupation, as he required a walker and was unable to sit and drive for prolonged periods due to the pain and functional limitations from service-connected low back disability. As to physical manual employment, the Veteran would be unable to pursue an occupation that required physical labor, as he reported that he had difficulty standing, walking, and bending due to his service-connected disabilities and that he required a walker and knee brace. Specifically, upon physical examinations, the Veteran had limitation of motion of his service-connected disabilities, which would cause limitations in a work environment that required physical labor, such as bending or even walking. In fact, the Veteran was not able to complete the June 2005 VA back examination, due to severe low back pain. Although there are some medical opinions to the contrary on the question of employability, this determination is ultimately an adjudicatory and not a medical one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner"). The above evidence reflects that from November 23, 2004, to March 6, 2008, the Veteran's service-connected disabilities significantly impaired him and would, in combination, preclude him from obtaining and maintaining any form of gainful employment of the type for which he would be qualified based on his prior employment and education consistent with such employment. Thus, the evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities from November 23, 2004, to March 6, 2008, precluded him from obtaining or maintaining substantially gainful employment. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, a TDIU from November 23, 2004, to March 6, 2008, pursuant to 38 C.F.R. § 4.16(b) is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.