Citation Nr: 21031698 Decision Date: 05/24/21 Archive Date: 05/24/21 DOCKET NO. 12-28 846 DATE: May 24, 2021 ORDER From May 31, 2016, but not earlier, a total disability rating based on individual unemployability as a result of service-connected disabilities (TDIU) on an extraschedular basis is granted subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT From May 31, 2016, the date the Veteran was last employed, the evidence of record demonstrates that his service-connected disabilities, notably his service-connected low back disability rendered him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW From May 31, 2016, the criteria for TDIU have been met. 38U.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 April 1974 to February 1977, February 1977 to February 1980, and from December 1980 to January 1997. In an August 2017 decision, the Board denied the Veteran's claim for an increased rating for lumbar facet arthropathy. The Veteran appealed the matter to the United States Court of Appeals for Veterans Claims (Court). In September 2018, the parties agreed to a Joint Motion for Partial Remand (JMPR). Based on the JMPR, the matter of entitlement to a TDIU was included in the appeal and remanded by the Board in March 2019. See Rice v. Shinseki, 22. Vet. App. 447 (2009). In March 2020, the Board again remanded the matter of entitlement to a TDIU to the agency of original jurisdiction (AOJ) for additional development. By a March 2021, decision, the Board granted entitlement to TDIU, effective December 10, 2020, the date the Veteran met the schedular criteria for this benefit. The Board remanded the issue of entitlement to TDIU for the period prior to December 10, 2020 on an extraschedular basis to the Agency of Original Jurisdiction (AOJ). The AOJ was requested to refer the claim of entitlement to TDIU for the period prior to December 10, 2020, to VA's Director of Compensation Service ("The Director") for adjudication in accordance with 38C.F.R. §4.16(b). The Director provided the requested opinion in March 2021. Thus, the requested development has been accomplished and the appeal has returned to the Board for further appellate consideration. The Veteran seeks entitlement to a TDIU rating for the period prior to December 10, 2020. TDIU may be assigned where the schedular rating is less than total when the disabled person is, in the judgment of the Board, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only one such disability, this shall be ratable at 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 disability or more. 38 C.F.R. § 4.16 (a). Marginal employment shall not be considered substantially gainful employment. Moreover, the existence or degree of nonservice-connected disabilities or previous unemployability status will be disregarded where the percentages referred to in this paragraph for the service-connected disability or disabilities are met and in the judgment of the rating agency such service-connected disabilities render the veteran unemployable. The Board notes that the appeal stems from a July 2010 claim for increased for the service-connected back and eye conditions, with the TDIU claim part-and-parcel of the claim for increased rating for a back disability. See Rice v. Shinseki, 22. Vet. App. 447 (2009). The Veteran was granted a TDIU effective December 10, 2020, the date that he met the schedular requirements for TDIU. In this case, the Veteran is service connected for lumbosacral facet arthropathy, intervertebral disc syndrome (rated as 20 percent disabling prior to May 19, 2016, and 40 percent disabling from May 19, 2016), radiculopathy of the left lower extremity, sciatic nerve(10 percent disabling from May 19, 2016, to December 9, 2020, and as 20 percent disabling from December 10, 2020), radiculopathy of the left lower extremity, femoral nerve (20 percent disabling from December 10, 2020)and hearing loss (noncompensable), status post primary meniscal repair, left knee (10 percent from February 1, 1997), hypertension (10 percent from February 1, 1997), and angle recession glaucoma of the right eye (10 percent from July 12, 2010). His combined rating is 40 percent from July 12, 2010, 60 percent from May 19, 2016, and 70 percent from December 10, 2020. Hence, the Veteran does not meet the schedular criteria for entitlement to a TDIU prior to December 10, 2020, even if the Board were to consider some of his service-connected disabilities as affecting the same body system (back/radiculopathy and left knee). See 38C.F.R. §4.16. The issue of entitlement to TDIU on an extraschedular basis was referred to the Director of Compensation Service (Director) for extraschedular consideration pursuant to the March 2021 Board remand. That same month, the Director denied the Veteran's request for TDIU on an extraschedular basis. 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 of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing to 38 U.S.C. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16 (b)); see Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Board must make its own determination as to whether an extraschedular award of TDIU is merited. In August 2020, the Veteran submitted a VA Form 21-8940, Application for TDIU, indicating that he was last employed as a custodian from 1998 to May 31, 2016, and that he became too disabled to work as of that date. His highest gross earnings per month were $2,500 per month. His education level was high school, and he denied having received any additional training or education. With respect to the impact of the disabilities on his work, the Veteran reported that he had constant back pain with pain shooting from his back down to his left foot and tingling in his left foot. He had instability when standing, his equilibrium was off, and he would fall. VA treatment records and examination reports prior to May 2016 reflect that the Veteran was dealing with low back, left hip, and left knee pain at work and in the evening, but that he was able to continue his work as a custodian with the post office. In a September 2012 statement, the Veteran's supervisor reported that, although the Veteran was a dependable worker, he was experiencing increased symptoms at work, was absent more frequently and was using more Family Medical Leave Act (FMLA) leave. He expressed his belief that it would be difficult for the Veteran to maintain his work standards as his pain progressed. An October 2012 VA physician statement reflects the assessment that the Veteran's back pain was worsening and limited his activity. He also noted that the Veteran had tried multiple medications and physical therapy without any relief. A May 2016 VA back examination, the Veteran reported that, since his last back exam, the pain had progressed such that it was nearly constant at a moderate to severe level. He also experienced some radicular pain into the left leg. Approximately every other month, he experienced back pain to such a degree that he had to skip work for 2 to 3 days. During that he stretched, used his transcutaneous electrical nerve stimulation (TENS) unit, lidocaine cream, and heating pad, and severely curtailed his activity. At the conclusion of the examination, the examiner opined that the Veteran was only capable of sedentary work. She noted that the Veteran was retiring early from his job as a custodian in a week because he was no longer able to tolerate the low back pain that his work caused. Social Security Administration (SSA) records reflect that the Veteran was determined to be disabled due to disorders of the back (discogenic and degenerative) and hypertension. While the Veteran stated that he became too disabled to work as of May 31, 2016, SSA noted date of disability of October 1, 2018 with indication the date was determined based upon when the disability onset. On VA back examination in December 2020, the examiner indicated that the Veteran's back condition would interfere with prolonged sitting, standing, walking, bending, turning, lifting, and carrying heavy loads. The record reflects that the Veteran stopped working on May 31, 2016, which he reported was due to his back and leg disabilities. He was found to be disabled by SSA as of October 2018 as due to his back and hypertension, which are both service-connected. Moreover, the May 2016 VA back examiner indicated that only sedentary employment would be possible, which would not appear to be possible for the Veteran given his previous work background with only post-service employment as a custodian and limited education and training. (Continued on the next page) The Board finds that overall, the evidence tends to show that the Veteran would not be able to obtain or retain employment, as a result of the functional limitations caused by his service-connected low back disability, as well as his leg disabilities from May 31, 2016, the date the Veteran was last employed. Accordingly, resolving doubt in the Veteran's favor, for the period from May 31, 2016, a TDIU on an extraschedular basis is granted. The Board notes that prior to May 31, 2016, the Veteran was shown to have been able to maintain substantially gainful employment for many years. This is not to say that his service connected disabilities did not cause impairment, but the impairment was the reason he received disability compensation from VA. Accordingly, the fact that the Veteran was able to work without any evidence of a protected or sheltered work environment, is clear evidence against the assignment of a TDIU earlier than May 31, 2016. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Carole Kammel, 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.