Citation Nr: 21032736 Decision Date: 05/27/21 Archive Date: 05/27/21 DOCKET NO. 11-23 032 DATE: May 27, 2021 ORDER For the period from January 13, 2008 to December 31, 2010, a total disability rating based on individual unemployability (TDIU) is denied. For the period from January 1, 2014 to December 31, 2014, a TDIU is denied. For the period from March 7, 2016 to April 18, 2019, a TDIU is granted. REMANDED The issue of entitlement to a TDIU for the period from January 1, 2011 to December 31, 2013 is remanded. The issue of entitlement to a TDIU for the period from January 1, 2015 to March 6, 2016 is remanded. VETERAN'S CONTENTION The Veteran contends that he is unable to obtain or maintain gainful employment due to his service-connected disabilities. FINDINGS OF FACT 1. The Veteran was substantially and gainfully employed for the periods from January 13, 2008 to December 31, 2010 and from January 1, 2014 to December 31, 2014. 2. For the period from March 7, 2016 to April 18, 2019, the Veteran was unable to obtain or maintain gainful employment due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a TDIU are not met for the period from January 13, 2008 to December 31, 2010. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(b), 4.19. 2. The criteria for a TDIU are not met for the period from January 1, 2014 to December 31, 2014. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(b), 4.19. 3. The criteria for a TDIU are met for the period from March 7, 2016 to April 18, 2019. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(b), 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1987 to February 1990. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. Jurisdiction is currently with the RO in Buffalo, New York. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in March 2019 and a transcript of the hearing has been associated with the claims file. This matter was previously before the Board at which times it was remanded for further development. Entitlement to a total disability rating (TDIU) for the period from January 13, 2008 to December 31, 2010; January 1, 2014 to December 31, 2014; and March 7, 2016 to April 18, 2019 At the outset, the Board notes that the RO sent the Veteran a Subsequent Development letter in February 2021. This letter specifically requested that the Veteran provide additional employment information. The Veteran did not respond to this request. Importantly, VA's duty to assist is not a one-way street. If the Veteran wishes help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining the putative evidence. Wood v. Derwinski, 1 Vet. App. 191 (1991); Hayes v. Brown, 5 Vet. App. 60, 68 (1993). In consideration of the appeal, the Board is satisfied there was substantial compliance with the remand directives and will proceed with review. See Stegall v. West, 11 Vet. App. 268 (1998). A TDIU is granted where a veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such 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). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). Here, for the periods from January 13, 2008 to December 31, 2010 and January 1, 2014 to December 31, 2014 the Veteran did not have one disability ratable of 60 percent or more or a combined rating of 70 percent, therefore he did not meet the threshold requirements for TDIU under 38 C.F.R. § 4.16(a). For the remaining period under consideration, March 7, 2016 to April 18, 2019, however, the Veteran's combined disability rating did meet the criteria of 38 C.F.R. § 4.16(a). Nevertheless, even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, TDIU may be granted on an extraschedular basis in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. §§ 3.321(b), 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the Court, citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the AOJ first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. After reviewing the evidence of record, the Board finds that the Veteran was substantially and gainfully employed from January 13, 2008 to December 31, 2010 and from January 1, 2014 to December 31, 2014, such that he is not entitled to a TDIU for these periods. On his VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, the Veteran reported working full time in 2008, 2009, 2010, and 2014. He also reported highest gross monthly earnings of $1600 in 2008, 2009, and 2010; and $1200 in 2014, which equates to an annual income of $19,200 in 2008 and 2009, $16,000 in 2010 (he reported his employment ended in October 2010); and $13,600 in 2014. According to the United States Census Bureau, the poverty threshold for one person under 65 years was $11,201 in 2008, $11,161 in 2009, $11,344 in 2010, and $12,316 in 2014. The Veteran's annual income exceeded the poverty threshold for one person under 65 years in 2008, 2009, 2010, and 2014. Further, the record does not show evidence of accommodations made to the Veteran due to his service-connected disabilities and his employment was not a family business or sheltered workshop or other type of protected employment. Therefore, the preponderance of the evidence is against a finding that the Veteran's employment was marginal in 2008, 2009, 2010, or 2014 and therefore, referral to the Director, Compensation service, for extraschedular consideration, is not warranted for the periods from January 13, 2008 to December 31, 2010 or January 1, 2014 to December 31, 2014 and a TDIU is denied for those periods. On the other hand, for the period from March 7, 2016 to April 18, 2019, service connection had been established for neurological defects of the right lower extremity (rated as 20 percent disabling); spondylolisthesis L5 on S1 with spondylolysis and degenerative disc disease of the lumber spine (rated as 40 percent disabling); and neurologic deficits of the left lower extremity (rated as 10 percent disabling). The Veteran had one disability rated at least 60 percent disabling (when considering conditions of a single etiology; see 38 C.F.R. § 4.16 (a)(2)). 38 C.F.R. § 4.16(a). Thus, as mentioned above, the Veteran met the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a). After reviewing the evidence of record, the Board finds that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities from March 7, 2016 to April 18, 2019. In this regard, the record reflects that the Veteran obtained a high school diploma and college degree. Since service, the Veteran reported primary employment working as a cook. Regarding his current ability to obtain and maintain substantially gainful employment, the evidence of record includes multiple lay statements from the Veteran indicating that his service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment. For example, during June 2018 and March 2019 Board hearings, the Veteran stated that he was unable to hold a job because of pain/physical disability. Turning to the medical evidence of record, in a June 2013 Narrative Report, a Vocational Rehabilitation Counselor (Counselor) opined that the Veteran's service-connected disabilities substantially contributed in an identifiable, measurable, observable, manner to the Veteran's overall vocational impairments. The Counselor reasoned that the capacity to work was impaired for physical activities such as jobs that require lifting, standing, squatting, bending, and twisting which could aggravate the Veteran's physical disabilities. The Counselor also reasoned that, given the Veteran's service-connected back, jobs that required prolonged sitting could also aggravate the Veteran's existing physical disabilities. During a March 2016 VA Spine examination, the Veteran reported that he continued to experience chronic low back discomfort and that he was not working as a consequence of multiple medical comorbidities. During an October 2018 Mount Hope VA Vocational Rehabilitation Intake Assessment, the Veteran reported chronic joint and back pain as a physical disability/barrier to employment. After considering the functional impact of the Veteran's service-connected disabilities on his ability to obtain and maintain substantially gainful employment, the Board finds that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities, from March 7, 2016 to April 18, 2019. See Gilbert, 1 Vet. App. 54. See also 38 U.S.C. § 5107. In making this determination, the Board has considered the Veteran's level of education and his primary employment history of working as a cook. The Board has also considered that the March 2016 VA examiner indicated that the Veteran's back condition did not impact his ability to work; however, the Board considers the vocational Counselor's opinion to be more probative, insofar as she provided a detailed rationale for her opinion in determining that the Veteran's service-connected disabilities could be aggravated by lifting, standing, squatting, bending, twisting, and prolonged sitting. REASONS FOR REMAND Entitlement to a total disability rating (TDIU) for the periods from January 1, 2011 to December 31, 2013 and from January 1, 2015 to March 6, 2016 is remanded. A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16 (a). Here, from January 1, 2011 to December 31, 2013 and from January 1, 2015 to March 6, 2016, the Veteran was service connected for spondylolisthesis L5 on S1 with spondylolysis and degenerative disc disease on the lumbar spine (rated as 40 percent disabling); and neurologic deficits of the left lower extremities (rated as 20 percent disabling). As the Veteran did not have one disability ratable of 60 percent or more or a combined rating of 70 percent, he did not meet the threshold requirements for TDIU under 38 C.F.R. § 4.16(a). However, as indicated above, where the percentage requirements for a schedular TDIU are not met, entitlement to the benefits on an extraschedular basis may be considered where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. See 38 C.F.R. § 4.16(b). In this regard, during a December 2009 VA Spine examination, the Veteran described moderate to severe lower back pain resulting in stiffness, weakness, numbness, and limited/painful range of motion. In a June 2013 Narrative Report, a Vocational Rehabilitation Counselor (Counselor) opined that the Veteran's service-connected disabilities substantially contributed in an identifiable, measurable, observable, manner to the Veteran's overall vocational impairments. The Counselor reasoned that the capacity to work was impaired for physical activities such as jobs that require lifting, standing, squatting, bending, and twisting which could aggravate the Veteran's physical disabilities. The Counselor also reasoned that, given the Veteran's service-connected back, jobs that required prolonged sitting could also aggravate the Veteran's existing physical disabilities. During a March 2016 VA Spine examination, the Veteran reported that he continued to experience chronic low back discomfort and that he was not working as a consequence of multiple medical comorbidities. The Board acknowledges that the Veteran was employed during periods from January 1, 2011 to December 31, 2013 and from January 1, 2015 to August 2015. However, the evidence of record suggests that this employment was marginal and therefore not substantial gainful employment. Given that the record reflects that the Veteran's service-connected disabilities may have presented an exceptional disability picture and may have prevented him from obtaining or maintaining substantially gainful employment from January 1, 2011 to December 31, 2013 and from January 1, 2015 to March 6, 2016, the Board finds that the case should be referred to the Director of Compensation & Pension Service for extraschedular consideration. 38 C.F.R. § 4.16(b) (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 TDIU threshold percentage standards.) Along with the claims file, a full statement should be provided that includes the Veteran's service-connected disabilities, employment history, educational and vocational attainment, and any other factors having a bearing on the issue. Id. The matters are REMANDED for the following action: Refer the issue of entitlement to a TDIU for the period from January 1, 2011 to December 31, 2013 and from January 1, 2015 to March 6, 2016 to the Director, Compensation Service, for extra-schedular consideration. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.