Citation Nr: 21039827 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 14-11 087 DATE: July 1, 2021 ORDER Entitlement to a disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to July 18, 2020, on an extraschedular basis, is denied. FINDING OF FACT The Veteran's service-connected disabilities did not preclude him from securing or following substantially gainful employment for the period prior to July 18, 2020. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to July 18, 2020, on an extraschedular basis, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1973 to August 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. The matter was previously before the Board on multiple occasions, most recently in April 2021. At that time, the Board remanded the claim for TDIU prior to July 18, 2020, on an extraschedular basis, for referral to the Director, Compensation Service. As the record reflects that the Director issued an advisory opinion in April 2021, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU In order to be entitled to a TDIU, the evidence must show that the Veteran is incapable "of performing the physical and mental acts required" to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual's particular circumstances. Rice, 22 Vet. App. at 452. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Here, the Veteran was granted a TDIU effective July 18, 2020, the date the Veteran first met the schedular criteria. Prior to July 18, 2020, service connection was in effect for lumbar spine disability, rated at 10 percent disabling prior to January 10, 2020 and 20 percent thereafter; right lower extremity radiculopathy of the femoral nerve, rated at 20 percent disabling; left lower extremity radiculopathy of the femoral nerve, rated at 20 percent disabling; right lower extremity radiculopathy associated with lumbar spine degenerative disease, rated at 10 percent disabling; and left lower extremity radiculopathy associated with lumbar spine degenerative disease, rated at 10 percent disabling. Thus, his combined total disability rating was 30 percent prior to January 10, 2020 and 40 percent until July 18, 2020. Therefore, the Veteran did not meet the schedular criteria for a TDIU prior to July 18, 2020. Even if a Veteran's service-connected disabilities do not meet the schedular requirements for a TDIU, "[i]t 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." 38 C.F.R. § 4.16(b). For this reason, a TDIU may still be assigned on an extraschedular basis to a Veteran whose disability ratings fail to meet the required minimums. Where this is warranted, the claim must first be referred by the Agency of Original Jurisdiction (AOJ) to the Director, Compensation Service for extraschedular consideration. Thereafter, the Board may review the decision of the Director and make an independent determination on the matter. Wages v. McDonald, 27 Vet. App. 233, 238 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). Here, the record reflects that the Veteran has a high school education and last worked in September 2007 in a factory setting running machinery to create treads for tires. The Veteran worked in that position for the same company since 1993. The Veteran contended in his May 2020 TDIU application that he was unable to perform his duties due to problems with his back, shoulder and depression. The record reflects that the Veteran took disability retirement from his position after surgeries on his shoulder. The Veteran was determined to be disabled by the Social Security Administration (SSA) effective April 2009, based on disorders of the back as the primary diagnosis with osteoarthritis and allied disorders as the secondary diagnosis. VA and private treatment records reflect complaints of chronic back pain radiating into the legs. A March 2012 VA examination for the Veteran's back concluded that the condition did not have an impact on his ability to work. An April 2021 administrative review noted no evidence of frequent periods of hospitalization for the Veteran's back and concluded that the available evidence did not support the Veteran's contention that his service-connected disabilities prevented all types of gainful activity. The administrative review nevertheless recommended to the Director that entitlement to a TDIU be granted on an extraschedular basis. The April 2021 advisory opinion from the Director noted that the medical evidence showed the Veteran had difficulty with prolonged standing, walking, sitting, bending, driving lifting and carrying. The Director conceded that the Veteran's service-connected conditions caused functional limitations, but concluded that the preponderance of evidence did not show that the Veteran was unable to obtain or maintain gainful employment due to his service-connected conditions. Following review of the record, the Board concurs with the Director's conclusion. The evidence during the period in question reflects that the Veteran experienced functional limitations as a result of his service-connected back and radiculopathy disabilities, but not that he was precluded from securing or following a substantially gainful occupation. The Board acknowledges the Veteran's competent and credible claim that he experienced back pain that limited his ability to work, but his lay statements are outweighed by the medical evidence, including the VA examination and treatment records, which demonstrate some impairment in occupational functioning, but do not demonstrate the inability to obtain or maintain substantially gainful employment as a result of the back and radiculopathy disabilities. The Veteran's representative argues that a TDIU is warranted based on the disability finding by SSA. While the SSA determination can lend support to the Veteran's claim, the SSA disability finding was based in part on nonservice-connected disabilities. VA regulations prohibit consideration of impairments caused by nonservice-connected disabilities when determining entitlement for TDIU. Consequently, the SSA determination is given little to no weight on the question of whether an extraschedular TDIU was warranted prior to July 18, 2020. Based on the foregoing, the Board finds that a TDIU prior to July 18, 2020, on an extraschedular basis, is not warranted, and the claim is denied. As the preponderance of evidence is against the Veteran's claim, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, Associate 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.