Citation Nr: 21030141 Decision Date: 05/17/21 Archive Date: 05/17/21 DOCKET NO. 11-03 649 DATE: May 17, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) is granted, subject to the law and regulations governing the payment of monetary benefits. FINDING OF FACT The evidence is at least in equipoise that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1974 to August 1977. The Board sincerely thanks the Veteran for his service to our country. This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In March 2016, the Board, in pertinent part, denied entitlement to a rating in excess of 10 percent for low back strain with degenerative joint disease. The Veteran appealed the March 2016 Board's denial to the Court of Appeals for Veterans Claims (Court), which vacated the decision as it pertains to the issue of entitlement to an increased rating for low back strain and remanded it back to the Board for further development, pursuant to an October 2016 Joint Motion for Remand. In June 2017, the Board remanded the claim, along with a claim for TDIU raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), for further development. In May 2019 Board again remanded the claim for TDIU for a referral to the Director, Compensation Service, for consideration in the first instance of a TDIU on an extraschedular basis. 38 C.F.R. § 4.16(b). Finally, in July 2020 the Board remanded the claim to allow for adjudication of the Veteran's claim for service connection for a hip disability. The Veteran's claim for service connection for a hip disability has been adjudicated and the Board may proceed with adjudication of the claim for TDIU. The Board finds that there has been substantial compliance with its remand directives. See Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010). 1. Entitlement to a TDIU The Board finds that the most probative evidence of record reaches, at a minimum, the level of equipoise as to whether the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disabilities. In February 2011 correspondence, the Veteran contended that he had to retire from his job with the United States Postal Service (USPS) because of worsening pain and limited movement. A TDIU may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; 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. Id. It is the established policy of the Department of Veterans Affairs 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. Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16 (b). The Board may not grant an extraschedular TDIU in the first instance. The Director's decision is not evidence, but, rather, the de facto Agency of Original Jurisdiction (AOJ) decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts a de novo review of the Director's decision denying extraschedular consideration). If the Board determines that an extraschedular TDIU is not warranted despite its earlier referral, it must provide an adequate statement of reasons and bases for its decision. Ray v. Wilkie, 31 Vet. App. 58, 66 (2019). A determination of whether a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability is a factual, rather than a medical, determination. Therefore, VA is responsible for the ultimate decision of whether a veteran is capable of securing or following substantially gainful employment. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In adjudicating the issue of entitlement to a TDIU, the Board may not consider any nonservice-connected disabilities or advancing age. However, 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. As noted above, entitlement to a TDIU was raised as part and parcel of the Veteran's increased rating claim for low back strain with degenerative joint disease, received by VA on May 13, 2008. Rice, 22 Vet. App. at 453-54. As such, the rating period for consideration, as most favorable to the Veteran, for entitlement to a TDIU is from one year prior to the May 13, 2008 date of receipt of the claim for increase, if it is factually ascertainable that an increase warranting a TDIU occurred during that period. The Veteran is currently service-connected for low back strain with degenerative joint disease, status post tailbone fracture, tinnitus, radiculopathy right lower extremity, bilateral hearing loss, right tibia fracture, vasomotor rhinitis, and tinea versicolor. The Veteran's current combined disability rating is 50 percent. The Veteran has not met the schedular criteria at any point during the period on appeal. The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Entitlement to an extraschedular TDIU may be referred in the first instance for approval by the Director of VA Compensation services. In this case, in November 2019, a VA decision review officer (DRO) referred the claim to the Director and highlighted a number of pieces of evidence for consideration. The DRO listed the Veteran's service-connected disabilities, employment history, and educational and vocational attainment, and stated that, in the opinion of the rating authority, extraschedular consideration is warranted. The DRO recommended that the claim be granted because the record shows an indication that the Veteran's disabilities render him unable to secure or follow substantially gainful employment; and there is evidence showing that the Veteran may be unable to perform even light physical work that just involves sitting. In December 2019, the Director issued a decision on the TDIU claim. The Director of the Compensation Service found that no extraschedular rating assignment was warranted for the disabilities at issue. She opined that the overall evidence fails to support the contention that any of the Veteran's service-connected disabilities or a combination of the effects of those disabilities prevents employment. The Veteran completed high school education prior to serving in the United States Army and obtained an associate degree in 1980. See April 2017 private medical treatment record; April 2020 Vocational Assessment. On the April 2017 VA Form 21-8940, the Veteran indicated that he completed three years of college. He has not had any education or training since becoming too disabled to work. The Veteran reported that, after military service, he worked as a nurse for one year, with machines for six months, as a letter carrier for seven years, postal supervisor for 11 years, and as a postal manager for nine years. See August 2008 VA Examination. On a July 2007 Physical Demand Profile, the Veteran stated that his work and other daily activities required him to lift, bend, squat, grip, climb, push, pull, carry, sit, stand, walk, reach, stoop, and pivot. He noted that keyboard and computer usage was required. The heaviest thing the Veteran might have to lift or carry at work during his day was 75 to 100 pounds. The report indicated that the Veteran had not missed any work in the previous year due to his physical complaints. In February 2011 correspondence, the Veteran contended that due to his lower back disability he is unemployable. He stated that he had to retire from his post office job because of the worsening back pain and limited movement. The Veteran asserted that if he sits too long, his right leg goes numb and if he stands for too long, he gets tingling down both legs. He also reported walking too far results in severe back pain and tingling down his right leg. December 2012 private treatment records show that the Veteran complained of right sided lower back and buttocks pain that radiates down the anterior right leg to the knee. Pain was reported as aching and throbbing, with a severity of 8 out of 10. Bending and stooping, as well as prolonged standing or walking were listed as aggravating factors. Right leg, and then left, numbness was reported to begin after prolonged standing or walking. On the October 2014 VA examination for hearing loss and tinnitus, the Veteran reported that he has problems hearing on the telephone and understanding speech in the background noise. On the October 2014 VA examination for the back, the examiner diagnosed the Veteran with Intervertebral Disc Syndrome (IVDS) and arthritis, and stated that the Veteran's back condition impacts his ability to work. It was noted that the Veteran is unable to stand for over 30 minutes, unable to walk over two to three blocks, unable to lift or carry over 10 pounds, and unable to bend or stoop. The examiner stated that there were no limitations on sitting. The Veteran reported that during flare-ups (occurring twice monthly and lasting one day) and after repetitive activities, his range of motion and functional ability are reduced by approximately 75 percent. In December 2016 correspondence, the Veteran asserted that he has not worked since he left his job at the post office and that he left his job due to his back disability. The Veteran stated that he can only be in a seated position for only 10 to 15 minutes before experiencing pain. The Veteran noted that he struggles with maintenance around the house and yard work. He reported that his hearing causes him difficulty in understanding and comprehending people when around background noise. The Veteran further reported that when his hearing aids die, he can barely communicate with people around him due to his inability to hear. In an April 2017 private medical record, the physician opined that the Veteran has been precluded from securing and following a substantially gainful employment because of his lumbar spine disability. The physician stated that at the time of his forced retirement, not only was the Veteran's work position with the USPS sedentary, but he had complete freedom to either sit, stand, or be up and about depending upon his lumbar symptoms. Despite the flexibility, the Veteran was unable to maintain his position due to his lumbar spine condition. July 2017 and May 2018 private medical treatment records both show complaints of radiating low back pain. The May 2018 VA examination did not diagnose the Veteran with either IVDS, arthritis, or signs or symptoms due to radiculopathy. The examiner noted that the Veteran's back condition does not impact the Veteran's ability to work. A March 2020 vocational assessment considered that Veteran's reports of physical limitations due to his back pain, sleep loss from back pain, and hearing impairment. The vocational expert also considered the Veteran's work history and education. She opined that the Veteran would have difficulty with basic requirements to sustain competitive employment because he must frequently adjust position due to back pain, and that this would cause the Veteran to take more breaks than reasonable at most places of employment. She also opined that the Veteran would have trouble maintaining sufficient focus at work due to his lack of sleep. Finally, he would have trouble working in a facility with background noise as he would not be able to effectively communicate with those around him. The Board has considered the Veteran's educational background and his lengthy work history with the USPS. The Board has also considered the Veteran's reports that did not miss work due to his disabilities prior to his retirement, that he might lift packages of 75 pounds at work, as well as the May 2018 examiner's opinion that the Veteran's back disability does not impact his ability to work. The Board has also considered the numerous VA and private treatment records showing that the Veteran can no longer lift more than five to 10 pounds, that he must change position between sitting and standing frequently, that he does not hear well where there is background noise or on the telephone, and that he is drowsy from not sleeping well due to back pain. The Board finds that the most probative evidence of record reaches, at a minimum, the level of equipoise as to whether the Veteran is unable to secure and follow substantially gainful employment due to his service-connected disabilities. Accordingly, entitlement to a TDIU is warranted. However, the Board will not assign an effective date for the grant of TDIU and will allow the AOJ to do so in the first instance, taking into consideration the last date on which the Veteran was employed full time in substantially gainful employment. See Urban v. Principi, 18 Vet. App. 143, 145 (2004). M. ESPINOZA Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board O. Halpern 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.