Citation Nr: 21028285 Decision Date: 05/10/21 Archive Date: 05/10/21 DOCKET NO. 10-37 125 DATE: May 10, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to May 30, 2018, is granted. REMANDED Entitlement to TDIU on an extraschedular basis for the period prior to April 8, 2014 is remanded. FINDING OF FACT From April 8, 2014, to May 29, 2018, the evidence is at least in equipoise as to whether the Veteran's service-connected posttraumatic stress disorder (PTSD), degenerative arthritis of the spine with intervertebral disc syndrome, right lower extremity sciatic nerve radiculopathy associated with his lumbar spine disability, tinnitus, and coronary artery disease, status-post myocardial infarction, precluded him from being able to secure or follow substantially gainful employment. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU are met from April 8, 2014 to May 29, 2018. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.16, 4.25, 4.26. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from April 1968 to March 1970 and from August 1990 to April 1991. He had additional service in the Ohio Army National Guard. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In that rating decision, the RO granted service connection for posttraumatic stress disorder (PTSD) and a lumbar spine disability. The Veteran appealed the assigned evaluations. In his September 2010 substantive appeal, the Veteran requested a hearing before the Board. In September 2017, the Veteran was scheduled for a videoconference hearing before a Veterans Law Judge. However, on the day of the scheduled hearing, the Veteran provided written notice that he wanted to withdraw his appeal. In November 2017, the Veteran's representative submitted an appellate brief. As there was conflicting information as to whether the claims should proceed or be withdrawn, a letter was sent to the Veteran and his representative. In April 2018, the Veteran requested that the Board continue his appeal. In addition, the Veteran withdrew his hearing request in a written statement, and he has not indicated a desire for another hearing. In May 2018, the Board remanded the case for further development. In the May 2018 remand, the Board found that the issue of entitlement to TDIU was raised as part and parcel of the underlying increased rating claims. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In September 2019 and December 2020, the Board remanded the case for further development. The case has since been returned to the Board for appellate review. Upon review of the claims file, the Board finds that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Entitlement to TDIU prior to May 30, 2018, is granted. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Prior to May 30, 2018, the Veteran was service-connected for PTSD, rated as 50 percent disabling; degenerative arthritis of the spine with intervertebral disc syndrome, rated as 20 percent disabling; right lower extremity sciatic nerve radiculopathy associated with his lumbar spine disability, rated as 20 percent disabling; tinnitus, rated as 10 percent disabling; and coronary artery disease, status-post myocardial infarction, rated as 10 percent disabling. These ratings resulted in a 70 percent combined rating from April 8, 2014. Therefore, the Veteran meets the minimum schedular requirements for TDIU from April 8, 2014. 38 C.F.R. § 4.16(a)(2). In analyzing TDIU claims, the central inquiry is, "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The term "unable to secure and follow a substantially gainful occupation" has two components: one economic and one noneconomic. 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. The non-economic component includes consideration of the following: The Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Throughout the appeal, the Veteran has asserted that his service-connected lumbar spine disability and PTSD rendered him disabled. As discussed in the December 2020 remand, the Veteran has not provided an Application for Increased Compensation Based on Unemployability, VA Form 21-8940. He did not respond to a January 2021 request to provide this form. The Veteran's Social Security Administration (SSA) records show that he reported he last worked in December 2008. SSA records indicated that the Veteran was initially placed on short-term disability by his employer in December 2008 because he was unable to lift over 25 pounds. The Board notes this is consistent with correspondence from the Veteran throughout the appeal and that it is consistent with his reports in VA treatment notes dated from January 2009. In fact, in a January 2009 VA treatment note, the Veteran indicated that he was placed on medical leave by his company. In February 2009 VA treatment notes, the Veteran indicated that he hoped to be medically retired by his company. In a May 2009 SSA record, the Veteran reported that he was unable to return to work and that he was placed on long-term disability. In a June 2009 SSA record, he stated that he was told that he could no longer work due to his back pain. Prior to December 2008, the record indicates that the Veteran worked full-time as a factory worker for a box manufacturing company for 11 years. See April 2006 VA treatment notes, December 2008 VA PTSD examination report. In a June 2010 statement, the Veteran reported that he was "forced out" of employment due to his worsening physical abilities. He stated that he was unable to stand for any length of time, and that his overall body strength had drastically reduced. He related that he was unable to sit at a computer without having to constantly reposition himself and that his shoulder pain interfered with any type of reaching movements. He also indicated that his definition of "being 'productive'" had been "reduced to getting through the day without being a burden to someone." He reported that he had difficulty finding motivation or the ability to complete tasks around his home, that his memory was impaired, and that others had to correct him. In a December 2008 VA spine examination, the examiner opined that the Veteran could perform his normal job. The examiner noted that the Veteran used a back brace at times and that flare-ups occurred with heavy use. In a December 2008 VA PTSD examination, the Veteran related that he was employed at that time. The examiner noted that the Veteran was able to keep a job and that he had some friends, which made the examiner feel that the Veteran's symptoms were not very severe. In support of his claim for a TDIU, the Board notes that a May 2018 VA examiner opined that it was at least as likely as not that the Veteran was unable to perform sedentary work. For the following reasons, the evidence is at least evenly balanced as to whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, and entitlement to TDIU is warranted prior to May 30, 2018. The only conflicting evidence is the December 2008 VA examiner's opinion that that the Veteran could perform his normal job. However, the Board finds this is inconsistent with the medical evidence dated from January 2009 after the Veteran was placed on disability by his employer, which showed that the Veteran's lumbar spine disability prevented him from working in the box factory. The Veteran has occupational experience as a factory laborer and a janitor, and he does not have a college education. He does not report any other work experience or training. There is no evidence that the Veteran is qualified for alternative work that might accommodate his limitations due to service-connected disabilities. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). For the foregoing reasons, the evidence is at least evenly balanced as to whether the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation prior to May 30, 2018. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU from April 8, 2014, to May 29, 2018, is warranted. 38 U.S.C. § 5107(b). Finally, the Veteran has a 100 percent evaluation assigned from May 30, 2018. A TDIU rating based on a single service-connected disability may form the basis for assignment of special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet. App. 280 (2008). In this case, however, the Veteran has asserted, and the evidence shows he is rendered unable to work due to his lumbar spine, upper extremity radiculopathy, and his PTSD disabilities. Therefore, a TDIU based on a single disability is not warranted at any time during the appeal. REASONS FOR REMAND 1. Entitlement to a TDIU on an extraschedular basis for the period prior to April 8, 2014 is remanded. As noted above, prior to April 8, 2014, the Veteran did not meet the schedular rating criteria necessary for TDIU. The Board finds that the evidence described above, prior to April 8, 2014, is sufficient to warrant referral of his TDIU claim to the Director of Compensation Service for consideration of entitlement to TDIU on an extraschedular basis for the period remaining on appeal prior to April 8, 2014. The matters are REMANDED for the following action: (Continued on the next page) Refer the Veteran's claim for a TDIU, prior to April 8, 2014, to the Director of Compensation Service for extraschedular consideration pursuant to the provisions of 38 C.F.R. § 4.16(b). A.M. CLARK Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Osegueda, 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.