Citation Nr: 21032395 Decision Date: 05/26/21 Archive Date: 05/26/21 DOCKET NO. 09-19 696 DATE: May 26, 2021 ORDER From May 31, 2006 to July 9, 2014, entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected chronic back strain with a history of degenerative disk disease on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is granted. FINDING OF FACT From May 31, 2006 to July 9, 2014, resolving all reasonable doubt in the Veteran's favor, the evidence is at least in equipoise regarding whether the Veteran was unable to secure or follow a substantially gainful occupation consistent with his education and work experience because of his service-connected low back disability. CONCLUSION OF LAW From May 31, 2006 to July 9, 2014, the criteria for entitlement to a TDIU on an extraschedular basis due to service-connected chronic back strain with a history of degenerative disk disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the United States Army from April 1975 to October 1978 and February 1980 to October 1981. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision. Initially, this case was before the Board in February 2016, and the issue was remanded for additional development. At that time, the Board took jurisdiction of the TDIU claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) because in a statement received in July 2014, the Veteran asserted his back disability renders him unemployable due to significant functional impairments caused by pain and the medications he must take for his pain. Subsequently, a November 2017 Board decision granted entitlement to TDIU from July 10, 2014, and remanded the issue of a TDIU prior to July 10, 2014. The issue of TDIU prior to July 10, 2014, was again remanded in November 2019. Most recently, the Veteran's claim for entitlement to a TDIU prior to July 10, 2014, was remanded in November 2020 for referral to VA's Director of Compensation and Pension Service for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b). From May 31, 2006 to July 9, 2014, entitlement to a TDIU due to service-connected chronic back strain with a history of degenerative disk disease on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) is granted. The Veteran maintains he is too disabled to work due to his back condition. See e.g., July 2014 Correspondence. Following a thorough review of the record, the Board finds the Veteran's service-connected low back disability prevented him from obtaining or maintaining substantially gainful employment from May 31, 2006 to July 9, 2014. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). From May 31, 2007 to July 9, 2014, the Veteran was service connected for a chronic back strain with a history of degenerative disc disease evaluated as 40 percent disabling and right lower extremity radiculopathy evaluated at 10 percent disabling, with a combined overall evaluation of 50 percent. From May 31, 2006 to May 30, 2007, he was only service connected for chronic back strain with a history of degenerative disc disease evaluated as 40 percent disabling. As such, prior to July 10, 2014, the Veteran did not meet the schedular criteria for entitlement to TDIU. 38 C.F.R. § 4.16(a). If the veteran does not meet the required percentage standards set forth in 38 C.F.R. § 4.16(a), as in this case, he still may receive a TDIU on an extraschedular basis if it is determined he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). In cases where extraschedular consideration is warranted and prior to a determination on eligibility, referral to the Director of Compensation Service is necessary. The Board referred the matter to the VA Director of the Compensation service for this initial consideration in November 2020. The record reflects the Director denied the Veteran's extraschedular TDIU claim prior to July 10, 2014, in December 2020 by setting forth the following finding: "Although it is conceded that the Veteran's service-connected conditions do cause functional limitations, the preponderance of the evidence does not show that the Veteran is unable to obtain or maintain gainful employment due to his service-connected conditions." The Court held in Ray the Board's determination to refer a case for extraschedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extraschedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board "must provide adequate reasons or basis for deviating from its earlier referral decision." Ray, 31 Vet. App. at 3. See also Wages v. McDonald, 27 Vet. App. 233 (2015) (explaining the Director does not have nonreviewable discretion, and the Board has the jurisdictional authority to review the Director's extraschedular decisions). Regarding the time period on appeal, the effective date of a claim for a non-initial increased rating, including a TDIU, is the date of receipt of a claim or, if shown, the date of an ascertainable increase in disability up to one year prior to the date of the receipt of a claim. 38 C.F.R. § 3.400; Dalton v. Nicholson, 21 Vet. App. 23, 34 (2007). Thus, although the Veteran has been granted a TDIU from July 10, 2014, because the period on appeal for an increased rating may be longer than that, the issue of a TDIU remains on appeal. See Harper v. Wilkie, 30 Vet. App. 356, 360 (2018). In the absence of a factually ascertainable increase, the Veteran is only entitled to an effective date as of the day of the receipt of the claim. 38 C.F.R. § 3.400(o). Regarding this, on May 31, 2007, the Veteran filed an increased rating claim for his service-connected low back disability rated as 40 percent disabling, and as noted in the introduction above, the Veteran's TDIU claim has been inferred from his increased rating claim for his service-connected back disability pursuant to Rice. During the course of the appeal, a separate 10 percent rating for right lower extremity radiculopathy was granted as related to the service-connected chronic back strain with history of degenerative disk disease, effective May 31, 2007. See January 10, 2104 Rating Decision. Despite the determination of the Director, the Board finds an extraschedular TDIU is warranted prior to July 10, 2014, as there is sufficient evidence of record to find the Veteran's service-connected back disability alone rendered him unable to secure and follow a substantially gainful occupation from May 31, 2006 (i.e., one year prior to the date of the receipt of a claim), to July 9, 2014. The Veteran reported chronic lower back pain in August 2006. It was noted he was on several pain medications. On examination, tenderness over the upper lumbar region was noted as was a mild paraspinal spasm. It was noted the Veteran walked with a cane. A January 2007 Pain Consultation Note documents the Veteran experiences sleep disturbance. The Veteran reported only receiving one to three hours of continuous sleep each night. His energy levels were noted to be weak and worsening. Bending and walking were noted to increase tightening of the Veteran's back. The Veteran rated his tolerance for sitting at 30 to 45 minutes, his tolerance for standing at two and a half hours, and he can only tolerate one mile of walking. The examiner notes there was a clear relationship of pain to body position, movement, and activity levels, with twisting at the waist, extended walking, bending, and coughing or sneezing all increasing back pain. The report further notes the Veteran leads an irregular, non-scheduled, sedentary lifestyle, and opiod analgesics would not motivate him to engage in more physically or vocationally productive behaviors. Regarding this, an August 2007 back examination report notes the Veteran experiences pain as his major functional disability, but the pain does not appear to increase with repetitive activity. A September 2008 VA treatment record notes the Veteran is very frustrated about his back and being unable to work. A November 2013 back examination report notes the Veteran has difficulty getting up from a chair and at times his spouse must assist him in getting out of bed or with putting on his trousers or footwear. The Veteran also has difficulty sleeping due to his back pain and is unable to perform house cleaning or yard maintenance. In a statement received in July 2014, the Veteran asserts his back disability renders him unemployable due to significant functional impairments caused by pain and the medications he must take for his pain. Specifically, the Veteran states he experiences significant constant pain every day, which never goes away. He also reports significant muscle spasms. When his back medication does not help his symptoms, he reports using a back brace that his wife must place on him because he cannot do it alone. When he wears the back brace, he cannot bend, drive or ride in a car, cannot sit up straight, or go to the restroom unless he removes the device. The back brace also makes eating and drinking difficult. His back condition also limits his ability to exercise. Most of the time, his spouse must drive, and it is difficult for him to sit longer than 30 minutes in one position. The Board finds the evidence of record supports a grant of a TDIU on an extraschedular basis from May 31, 2006, to July 9, 2014. The Board acknowledges the Veteran's lay statements that his service-connected disabilities preclude him from employment. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). Of note, the record reflects the Veteran requires assistance from his spouse to put on clothing, and he cannot sit in one position for long periods. The Board finds the Veteran's lay statements to be probative because he describes pain and physical limitations that are also supported by objective evidence. Furthermore, a June 2005 Social Security Administration decision found the medical evidence established the Veteran's degenerative disc disease resulted in severe impairment. While the Board is not bound by determinations of other Federal agencies, the Board finds the determination, i.e., that the Veteran's back disability results in severe impairment, probative as to the severity of his back disability prior to July 10, 2014. See Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992) (holding that Social Security Administration determinations are not controlling for VA purposes). Additionally, the Board cannot ignore a November 2020 VA memo that recommends to "grant entitlement to TDIU on an extra-schedular basis since the evidence does somewhat support the [V]eteran was unemployable due to service-connected disabilities from May 31, 2007 to July 10, 2014." Regarding the one-year look-back period of May 31, 2006, affording the Veteran the benefit of the doubt, the Board finds the evidence of record supports the grant of a TDIU on an extraschedular basis during this time because the evidence of record shows the Veteran's service-connected back disability resulted in severe impairment one year prior to the date of the receipt of a claim. E.g., see June 2005 Social Security Administration Decision. The Board also acknowledges the findings by the Director in December 2020. The Board, however, is not bound by an adverse determination by the Director regarding extraschedular entitlement to a TDIU. See Wages, supra. In that regard, while the Director found the medical evidence of record prior to July 10, 2014, does not establish that the Veteran would be reasonably unable to pursue gainful employment, of both a physical and sedentary nature, there is competent, objective and lay evidence of record that indicate the opposite. Furthermore, given the Veteran's limited education and his primary employment in physical and manual labor, the Board finds it unlikely he would be able to obtain an office-type position or a position where he did not have to walk, stand, or drive and was allowed to rest his back during flare-ups. There is also objective evidence showing the Veteran could not do sedentary work. Accordingly, the Board finds the evidence is at least in equipoise as to whether the Veteran's service-connected back disability rendered him unable to secure or follow a substantially gainful occupation prior to July 10, 2014. Thus, resolving the benefit of the doubt in the Veteran's favor, the Board finds entitlement to a TDIU on an extraschedular basis is granted from May 31, 2006, to July 9, 2014. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). P. M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.