Citation Nr: 21030128 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 15-11 071 DATE: May 17, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disorders (TDIU) is granted, effective December 7, 2009. FINDING OF FACT The evidence is at least evenly balanced that since December 7, 2009 the Veteran's service-connected disabilities have prevented him from securing and following a substantially gainful occupation. CONCLUSION OF LAW Since December 7, 2009, the criteria for a total disability rating based on individual unemployability due to service-connected disorders (TDIU) have been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321(b), 3.340, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1969 to April 1970. This case comes to the Board from a May 2013 decision of the Agency of Original Jurisdiction (AOJ), which denied a request for a total disability rating based on individual unemployability due to service-connected disorders (TDIU). In June 2018, the Veteran testified before the undersigned at a Travel Board hearing. A transcript of that hearing is of record. The Board remanded this issue for further development in July 2018 and, most recently, in September 2020. In its most recent remand, the Board ordered the AOJ to refer this case to the Director of the Compensation Service for initial consideration of whether the Veteran was eligible to receive a TDIU rating on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Director denied the claim for an extraschedular TDIU rating in November 2020. Applicable Law VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing or following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment is not considered substantially gainful employment. Marginal employment exists when the Veteran's earned annual income is below the poverty threshold and in other limited circumstances. Id. The Veteran currently has six service-connected disabilities: (1) adjustment disorder (30 percent disabling since September 19, 2014); (2) degenerative disc disease of the lumbar spine with spondylosis and spondylolisthesis (20 percent disabling since December 7, 2009); (3) right lower extremity radiculopathy (20 percent since December 7, 2009); (4) left lower extremity radiculopathy (20 percent since January 7, 2013); (5) femoral nerve radiculopathy of the left lower extremity (20 percent since April 29, 2019); (6) femoral nerve radiculopathy of the right lower extremity (20 percent since April 29, 2019). Although his combined disability rating is now 80 percent, because the Veteran does not have one disability rated at least 40 percent or more, he does not meet the schedular rating criteria for TDIU under subsection (a). However, subsection (b) of the same regulation provides that it is VA's policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. When the claimant does not meet the schedular criteria of subsection (a), the Board must first forward the case to the Director of the Compensation Service for extraschedular consideration. The Board has jurisdiction to review the Director's refusal to assign an extraschedular rating. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015); Kuppamala v. McDonald, 27 Vet. App. 447, 456 (2015). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). When deciding a TDIU claim, the Board must take into account the individual's education, training, and work history. Pederson v. McDonald, 27 Vet. App. 276, 286 (2015). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court clarified the consequences of referrals for extraschedular TDIU. The Court determined that a decision to refer a claim to the Director for extraschedular consideration under 38 C.F.R. § 4.16(b) is a factual finding. Such a referral does not necessarily require the Board to award an extraschedular rating. Id. at 65. However, the Board must ensure that it adequately explains when a factual finding made at the referral stage comes out differently at the review stage. Id. at 66. Factual Background Although the earliest denial of this request for TDIU was issued in May 2013, the Veteran first raised the issue when the AOJ was considering his request to reopen a previously denied claim for service-connected compensation for a lower back disability. During his appeal of the denial of his reopening request, the Veteran wrote that his back injury "has made it so I can barely work however [the Social Security Administration (SSA)] awarded me [monthly disability benefits for his back injury]." The Board reopened the lower back claim in November 2012 and remanded the reopened claim for further development. The AOJ granted service connection for degenerative disc disease, spondylosis, and spondylolisthesis in December 2013. Because the Veteran timely appealed the initial rating assigned to his service-connected back disability after the favorable resolution of his reopening request and raised the issue of TDIU when that appeal was pending, the period relevant to the current TDIU claim goes back to December 7, 2009 (the date of receipt of the Veteran's request to reopen the lower back claim). See 38 U.S.C. § 5110(a); Rice, 22 Vet. App. at 454. The AOJ obtained medical records and decision processing documents from the SSA. These documents confirm the Veteran's statements that the agency determined that he was incapable of performing his past relevant work (classified as "Skilled, semi-skilled") and that, after considering his medical impairments, age, education, and work experience, he was not capable of performing other work. SSA uses different legal criteria to determine whether a claimant is eligible for disability benefits. Some of the most significant differences are that the Board is not permitted to consider the claimant's age and, unlike SSA benefits, a TDIU is only available to a Veteran who is unable to work because of service-connected disabilities. While the SSA decision is not binding on the Board, it is potentially relevant. The SSA documents include a June 2010 medical report which indicates that the Veteran had worked in many jobs. He once worked as a truck driver, but his most recent work had been for a glass company, installing and repairing windows. The Veteran indicated that he was an employee of a glass company in 1996 and 1997, earning $11 per hour. After that, he was self-employed while doing essentially the same work. He estimated he had been earning approximately $1,150 per month as a self-employed window worker but, after September of 2009, his disability began to cause substantial changes to his work activities. When he applied for SSA benefits, the Veteran indicated that he was working only three hours per day, approximately five days per week. According to the June 2010 SSA medical report, "Glasswork does involve heavy lifting of large windows and panes and this has caused him to have a great deal of back problems. In December 2009, he underwent evaluation by an orthopedic surgeon who advised him to stop heavy lifting and laborious work because of his chronic back pain." A more recent employer provided an employment questionnaire in March 2013. According to the questionnaire, he worked as a "flagger" for a construction company, receiving $2,700 per month. But he only worked in this capacity between sometime in August to October of 2012 and, according to the employer, he was "not able to work now. . ." An August 2013 VA back examination report described him as unemployed. The symptoms of his back disability consisted of painful movement, less movement than normal, and interference with sitting, standing and/or weight-bearing. In May 2015, the Veteran testified at a hearing before a decision review officer at the AOJ. The hearing transcript provides further information about his work for the construction company in 2012. In his testimony, he described fluctuating pain and spasms in his lower back. Mowing his lawn, the Veteran explained, usually took him three days because of his need for frequent breaks to lie down. He also experienced back spasms or cramps every time he washed dishes. The Veteran suggested that, although he could occasionally perform the duties of many jobs for short periods, frequent flare-ups of unpredictable length prevented full-time employment: "I may be [at work] for two hours, and I may have to leave right away and not come back for two weeks, but I still got to be paid. Well, [a perspective employer who has been informed of these limitations] won't hire me." He suggested that prior VA examinations may not have recorded the full extent of his back symptoms after a period of time because, according to the Veteran, those examinations were "done after twenty minutes. . ." The Veteran testified that, when he agreed to try working as a "flagger" for the construction company, he believed the work would consist of "driving a car . . . in construction areas on the highways. . ." The Veteran recalled telling his supervisor that "'I can't sit here for an hour or two and drive. I got to get out.' [The supervisor] said, 'No problem. Get one of those guys over there will help you.' I said, 'Wow. I got a job.' So, the first day, I get out there and he says, 'Well, you could only drive for a couple hours. You [need to] stand . . . here and hold this flag for two hours.'" According to the Veteran, he could not consistently hold the flag up for two hours, which meant he was unable to continue the work. When he was asked if he might potentially be able to operate a cash register in a store, he said, "I can't even sit . . . at a . . . shop and take money, because I might have to go home. And number two, I can't stock shelves." The most recent VA back examination took place in April 2019. According to the examiner's report, degenerative disc disease, spondylosis, and spondylolisthesis began in service and persisted since then, with gradually worsening symptoms. The Veteran told the examiner he "had to quit working in his chosen profession cutting and installing glass several years ago due to this back pain. [He] states that over time he became unable to perform tasks such as bending and stooping to cut and install glass to his back pain and associated pain shooting down both legs." The examiner reported statements from the Veteran similar to those in his hearing testimony about his problems doing housework and dishes. He said he could walk "for 20 minutes or maybe only half that time." According to the examiner, the spine exhibited pain during all of the relevant range of motion tests (forward flexion, extension, right and left lateral flexion, and right and left lateral rotation). In the examiner's opinion, the Veteran was "highly limited in his ability to function in an occupational environment." But the examiner did indicate that it was likely that he could perform sedentary work. Following the Board's most recent remand orders, the AOJ issued a memorandum in September 2020 referring the TDIU claim to the Director. The AOJ's memorandum recommended that the Director should grant an extraschedular TDIU rating. But the Director a denied TDIU in November 2020. When explaining her ruling, the Director acknowledged that, because of his back symptoms, his previous employment installing and repairing windows "would not be the best fit for the Veteran." The Director suggested, however, that the Veteran would be able to perform sedentary work. According to the Director, "the American workplace has had a dramatic shift in the labor force over the last several decades. It has long been known that Americans generally have less strenuous jobs compared to those of years ago. The decline is due in part to the increasing reliance on computers, the Internet, and e-mail. There are many jobs in the workplace that require only light activity and for which a person with a high school education would be capable of performing." The Director suggested that the Veteran's problems sitting, "could reasonably be mitigated with adaptive equipment such as a sit/stand desk." Analysis Having considered the evidence, the Board finds that it is at least as likely as not that the Veteran service-connected low back and related lower extremity radiculopathy symptoms prevented him from obtaining and following a substantially gainful occupation throughout the relevant appeal period. The Board has considered the SSA's rulings that the Veteran was incapable of performing his past relevant work and likewise incapable of performing other work consistent with his medical condition, age, education, and job experience. Although SSA uses different criteria to award disability benefits than the Board uses when considering requests for TDIU, in this case, it appears that the SSA decided to award disability benefits primarily due to the effects of the Veteran's service-connected lower back disability. The SSA's ruling is inconsistent with the Director's suggestion, and the opinion of the April 2019 VA examiner, that the Veteran could perform sedentary work. But neither the Director nor the April 2019 examiner seem to have considered the Veteran's statements indicating that, although he could occasionally perform sedentary work and even window installation work for a few hours, he regularly experienced flare-ups of an unpredictable duration which prevented him from continuing any work on a full-time basis. The Director's suggestion that the "interference with sitting" noted in the VA examination reports could be mitigated by using a sit/stand desk is inconsistent with the Veteran's testimony that he needed to lie down for hours after flare-ups of lower back pain. The Veteran's earliest statements to SSA are consistent with this testimony. As noted, when he was self-employed performing window work, the Veteran usually worked for only three hours per day. Of course, the Director reached a contrary finding when she denied an extraschedular TDIU rating in November 2020. But the Board does not defer to the Director's findings, see Kuppamala, 27 Vet. App. at 457, and is required to consider the Veteran's individual education, experience, and work history when reviewing the denial of a TDIU rating. See Pederson, 27 Vet. App. at 286. It is possible that the Director may have considered that sedentary work was plausible because of the Veteran's many years of self-employed work. But the SSA documents and the Veteran's testimony suggest the alternative possibility that he was self-employed, not because he was particularly skilled at managing window work performed by others, but because he could not perform full-time hourly work for an employer. His application for benefits suggests that he did not earn significantly more money while self-employed than he did as an employee in 1997. And he only performed approximately three hours of work per day when he was self-employed. This information and the temporary nature of his subsequent work as a "flagger" for the construction company are favorable to his TDIU claim. 38 C.F.R. § 4.18 provides that unemployability may exist "if the employment was only occasional, intermittent, tryout or unsuccessful, or eventually terminated on account of the disability. . ." Since he was able to work for only a few months in 2012 before leaving on account of disability, the Veteran's brief work as a "flagger" is consistent with an award of TDIU. Under Ray, the Board's prior remand for extraschedular referral amounts a factual finding that the evidence established a reasonable possibility that the Veteran was unemployable due to his service-connected disabilities. Having made this finding, and having ordered a referral to the Director, if it were to deny the claim, the Board would be required to "adequately explain[] its reasoning when a factual finding made at the referral stage comes out differently at the review stage." Ray, 31 Vet. App. at 66. Since the Board ordered the extraschedular referral, the evidence continues to support the finding that the Veteran's service-connected lower back symptoms prevented him from working. The available information is insufficient to provide the kind of explanation required by Ray to support a denial of the claimed benefit under the procedural circumstances of this case. For these reasons, the evidence is at least evenly balanced as to whether, due to service-connected disabilities, the Veteran was unable to secure or follow a substantially gainful occupation throughout the relevant period (December 7, 2009 to the present). Resolving reasonable doubt in the appellant's favor, a TDIU rating will be assigned on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Nye, 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.