Citation Nr: 21039868 Decision Date: 07/01/21 Archive Date: 07/01/21 DOCKET NO. 13-15 328 DATE: July 1, 2021 ORDER Entitlement to an earlier effective date of May 2, 2007, for a total disability based upon individual unemployability (TDIU) on an extraschedular basis is granted, subject to the laws and regulations governing payment of monetary benefits. REMANDED Entitlement to an initial rating higher than 20 percent between September 7, 2005, and January 25, 2007, for degenerative joint disease of the thoracolumbar spine is remanded. Entitlement to an effective date prior to May 2, 2007, for a TDIU is remanded. FINDING OF FACT Resolving doubt in the Veteran's favor, the Veteran was unable to secure and maintain substantially gainful employment as a result of his service-connected disabilities from May 2, 2007. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities on an extraschedular basis have been met from May 2, 2007. 38 U.S.C. § 1155, 5110 (2012); 38 C.F.R. §§ 3.102, 3.340, 3.400, 4.15, 4.16(b) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1974 to October 1977. This matter is before the Board of Veterans' Appeals (Board) on appeal from October 2006 and February 2013 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in November 2015 when it was remanded for further development. In November 2019, the Board granted an initial rating of 20 percent for degenerative joint disease of the thoracolumbar spine, prior to January 25, 2007, and denied entitlement to a an initial rating higher than 20 percent prior to February 20, 2012, and 60 percent from May 1, 2012, for intervertebral disc syndrome and degenerative joint disease of the thoracolumbar spine. The Board remanded the issue of entitlement to a TDIU for further development and it has been returned to the Board. The Veteran filed an appeal with the United States Court of Appeals for Veterans Claims (Court). In August 2020, the Veteran's attorney and VA's General Counsel filed a Joint Motion for Partial Remand (Joint Motion) with the Court to vacate the Board's decision insofar as it denied entitlement to an increased rating between September 7, 2005, and January 25, 2007, for the thoracolumbar spine disability. The Court granted the parties' Joint Motion in September 2020 and the issue was remanded to the Board for further proceedings consistent with the Joint Motion. Entitlement to an effective date prior to February 5, 2012, for a TDIU. The Veteran is in receipt of a TDIU effective February 15, 2012. The issue before the Board is whether an earlier effective date for a TDIU is warranted. As a claim for a TDIU is a type of increased rating claim, the laws governing the assignment of effective dates for these types of claims apply. Unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). Generally, the effective date of an evaluation and award of service-connected compensation is the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If it is factually ascertainable that an increase in disability occurred one year or less prior to filing a claim for an increased rating, the date of the worsening can serve as the effective date. If the worsening occurred more than one year prior to the date of claim, the date of claim will serve as the effective date. 38 C.F.R. § 3.400(o)(2). Entitlement to a TDIU was granted in a February 2013 rating decision, effective February 15, 2012. In a January 2014 notice of disagreement, the Veteran appealed the effective date of the award. In an October 2006 rating decision, the RO granted service connection for degenerative joint disease of the low back, effective September 7, 2005, the date of his claim for service connection. The Veteran appealed the initial rating assigned for the back disability in May 2007. The Veteran's claim for a TDIU is associated with his claim for an increased rating for his thoracolumbar spine disability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Therefore, the Board finds that the appeal period for entitlement to a TDIU began on September 7, 2005, the date of his claim for service connection for a low back disability and the effective date of the grant of service connection for a low back disability. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341(a). If the schedular rating is less than total, a total rating can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he/she has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). If not, all veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). If 4.16(a) is not met, the case will be referred to the Director of the Compensation Service, for extraschedular consideration of all veterans who are unemployable by reason of service-connected disabilities. Id. In this case, prior to February 15, 2012, the Veteran was service-connected for the following disabilities: intervertebral disc syndrome and degenerative joint disease of the thoracolumbar spine, rated as 20 percent disabling from September 7, 2005, to February 19, 2012; radiculopathy of the right lower extremity, rated as 10 percent disabling from May 2, 2007, to February 14, 2012; and radiculopathy of the left lower extremity, rated as 10 percent disabling from May 2, 2007, to February 14, 2012. The Veteran's combined evaluation was 20 percent disabling from September 7, 2005, to May 1, 2007, and 40 percent disabling from May 2, 2007, to February 14, 2012. As noted above, entitlement to a TDIU was granted from February 15, 2012. The schedular criteria for a TDIU are not met prior to February 15, 2012. In November 2019, the Board noted that the Veteran worked as an electrician and his employment ended on January 4, 2006. VA examinations in September 2006 and May 2009 show that the Veteran was limited in his ability to work in a normal occupational environment due to his service-connected thoracolumbar spine disability. Therefore, the Board remanded the claim to refer the case to the Director, Compensation Service, for consideration of entitlement to an extraschedular TDIU prior to February 15, 2012. In an August 2020 memorandum, the Director, Compensation Service, denied entitlement to a TDIU on an extraschedular basis prior to February 15, 2012. As this issue has been considered by the Director in the first instance, the Board now has jurisdiction to consider the issue. The central inquiry is whether the Veteran's service-connected disabilities rendered him unemployable prior to February 15, 2012. In this regard, the question is "whether [a] veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to a veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). As for the Veteran's education and occupational history, the Veteran most recently worked as an electrician. A September 2005 VA treatment record noted that the Veteran stated that he worked 40 hours weekly as an electrician. In a July 2006 statement, the Veteran stated that he had been unable to work since January 4, 2006 because of his physical disabilities. An August 2006 SSA record noted that the Veteran reported earning a GED in 1987, and vocational training as an electrician with 6 years apprentice, 4 years as a master electrician, and 8 to 10 years as a journeyman electrician. In a July 2006 statement, the Veteran stated that his back hurt all the time and he could not twist his back very far in either direction. When he picked up any weight or carried it, this made the pain worse. He indicated he was unable to climb ladders or stairs, kneel or crawl due to his knee disability. A September 2006 VA examination report indicates the Veteran complained of pain, weakness, stiffness, fatigability and lack of endurance in the low back, but reported no radiation or paresthesias. The examiner noted that the Veteran had been unemployed since January as an electrician because of the right knee and low back conditions and he was self-sufficient in day-to-day activities except for bending, continued standing and ambulation. In an August 2006 Social Security Administration (SSA) disability benefits application, the Veteran reported that he became unable to work on December 31, 2005. He stated that his severe back pain and shortness of breath limited his ability to work. In the SSA application, the Veteran indicated that he worked as an electrician from 1995 to 2005, and had previously worked in hearing/air conditions maintenance in 2003, and as a roofer from 1985 to 1993. The Veteran reported that his job required him to stand, walk, climb, stoop, kneel, crouch, crawl, handle, grab or grasp big objects, reach, and write, type or handle small objects, for 8 hours. He indicated he would sit for 1 hour. The weight he frequently lifted as 10 pounds. A May 2007 VA treatment record noted that prolonged sitting aggravated the Veteran's chronic back pain. The record noted that the Veteran's lumbar spine range of motion was uniformly restricted with pain. In a July 2007 decision, the Veteran was granted SSA disability benefits effective August 31, 2006 with a primary diagnosis of chronic pulmonary insufficiency (COPD) and a secondary diagnosis of disorders of the back (discogenic and degenerative). The SSA decision noted that the Veteran had testified that he last worked as an electrician on January 3, 2006. He asserted that he could not climb ladders due to swelling in his legs and his joints. He noted that he had started using a cane in March 2006. He noted that he was attending college at that time, but had trouble remembering. The Board notes that although the SSA decision is relevant, the decision is not binding on the Board, and the SSA also considered the Veteran's nonservice-connected disabilities, including COPD. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (observing that while SSA decisions are relevant, there are significant differences between SSA and VA recognition of disabilities and SSA decisions are not binding on the VA). An August 2007 VA examination report noted that the Veteran reported having back pain with aching and stiffness with a constant dull ache and occasional sharp pain with movement. He reported having flare-ups 3 to 4 times in the past year for 2 to 3 days where he was bedridden because of his back pain. The examiner noted that the Veteran was employed until January 2006 when he was laid off. He was able to operate a motor vehicle, dress and undress, and attend to the needs of nature without assistance. The spine had forward flexion to 45 degrees. A September 2008 VA treatment record noted that the Veteran no longer went to school. He stated he was having difficulty ambulating around the campus. He was noted to have chronic low back pain and he stated he had difficulty getting out of bed in the morning. At a February 2009 VA examination, the Veteran had painful motion of the spine. He reported he was able to walk less than mile and did not use a cane or walker. The report indicated he was working past-time and he was self-sufficient for activities of daily living. Driving tolerance was diminished. A May 2009 VA examination report noted that the Veteran had stopped working as an electrician in 2005. The examiner found that the Veteran could function in a normal occupational environment with his service-connected thoracolumbar spine condition with the following limitations: 1) no lifting over 25 pounds, and no repetitive lifting from 15-25 pounds, no more than 6 times per hour; 2) No climbing ladders, operating a forklift, or machinery; 3) No repetitive back bending task, no more than 6 times per hour; 4) No prolonged standing or walking, no more than 15 minutes total or combined standing or walking per hour; 5) No prolonged keyboard work, no more than 30 minutes per hour. The examiner noted that the nonservice-connected conditions could also hinder the Veteran from an occupational environment. At a January 2013 VA examination, the Veteran stated that he worked as an electrician before retiring in 2005 on Social Security Disability. He reported that he had not been able to secure or maintain gainful employment since then. The examiner opined that the Veteran's back pain with radiculopathy of the lower extremities mostly rendered him unable to do any physical work due to pain, and rendered him unable to secure and maintain substantially gainful employment. In an August 2020 memorandum, the Director, Compensation Service, denied entitlement to a TDIU on an extraschedular basis prior to February 15, 2012. The Director stated that despite the assignment of an increased evaluation for the degenerative joint disease of the thoracolumbar spine from September 7, 2005, the totality of the evidence did not support the contention that due solely to the Veteran's service-connected disabilities he was rendered unable to secure or follow a substantially gainful occupation prior to February 15, 2012. The Board finds that the overall evidence supports a finding that from May 2, 2007, the criteria for entitlement to a TDIU on an extraschedular basis were met. From May 2, 2007, the Veteran is service-connected for radiculopathy of the right and left lower extremities, which with the thoracolumbar spine, resulted in a 40 percent combined disability rating. The evidence shows that the Veteran has been unemployed and unable to work due to his service-connected low back disability and radiculopathy. The January 2013 VA examiner found that the Veteran was unable to work due to his back pain with radiculopathy. The Veteran's occupational history as an electrician, requires physical work including standing and climbing ladders. The August 2007 VA treatment record stated that the Veteran had back pain and flare-ups causing him to be bedridden. The Veteran's VA treatment records noted he had difficulty walking and getting out of bed. The May 2009 VA examiner found that the Veteran could function in a normal occupational environment, but with restrictions including no lifting over 25 pounds, climbing ladders, or prolonged standing or walking. The restrictions described by the May 2009 are not consistent with his work experience as an electrician which requires climbing, standing and walking. The evidence reflects that the Veteran was trained as an electrician and had experience with physical work such as roofing. Although the Director of Compensation Service found that the Veteran's service-connected disabilities did not render him unable to secure and follow a substantially gainful occupation by reason of service-connected disorders, prior to February 15. 2012, the Board is not bound by that finding and the Board finds that there is sufficient evidence to conclude to the contrary. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation from May 2, 2007. Therefore, the Board finds that an earlier effective date for entitlement to a TDIU of May 2, 2007, is warranted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. In regard to the issue of an effective date prior to May 2, 2007, for the grant of entitlement to a TDIU, as discussed below, the issue is inextricably intertwined with the claim for an increased rating from September 7, 2005 and January 25, 2007, for degenerative joint disease of the thoracolumbar spine, and therefore must be remanded. REASONS FOR REMAND 1. Entitlement to an initial rating higher than 20 percent between September 7, 2005 and January 25, 2007, for degenerative joint disease of the thoracolumbar spine. In the Joint Motion, the parties found that the Board erred by providing an inadequate statement of reasons or bases for its determination that a retrospective opinion was not required. The parties noted the September 2006 was not adequate because the examiner did not provide an estimate as to the degrees of loss of range of motion during flare-ups or explain why an estimate could not be provided. Sharp v. Shulkin, 29 Vet. App. 26, 34-35 (2017). The examiner also did not indicate if the range-of-motion testing was conducted for active and passive motion and under weight-bearing and nonweight-bearing conditions. Correia v. McDonald, 28 Vet. App. 158, 169-70 (2016). The parties noted that in Chotta v. Peake, the Court explained that a retrospective medical opinion may be necessary and helpful in adjudicating a claim and provided a three-part test to determine when such an opinion is warranted. 22 Vet. App. 80, 84-85 (2008). Under the three part test, 1) VA must assist in gathering relevant records; 2) after all the evidence is gathered, the Board must assess whether the claim can be rated based on the available evidence; and 3) if a disability rating cannot be assigned based on available evidence, then the Board must address whether a medical opinion is needed to make a decision on the claim, which includes a retrospective medical opinion to assess whether a higher disability rating is warranted. Id. at 85. In this case, VA gathered relevant records and as the September 2006 is inadequate, the claim cannot be rated based on the available evidence. As a retrospective medical opinion may be able to provide the additional information regarding the estimated degree of loss of range of motion during flare-ups and range-of-motion testing for active and passive motion and under weight-bearing and nonweight-bearing conditions, the Board finds that the claim must be remanded to obtain a retrospective opinion. 2. Entitlement to an effective date prior to May 2, 2007, for a TDIU. Finally, because the retrospective opinion and a decision on the remanded issue of entitlement to an initial rating higher than 20 percent between September 7, 2005, and January 25, 2007, for degenerative joint disease of the thoracolumbar spine could significantly impact a decision on the issue of entitlement to an effective date prior to May 2, 2007, for a TDIU, the issues are inextricably intertwined. A remand of the claim is required. The matters are REMANDED for the following action: Obtain a retrospective opinion from a VA medical professional to address the nature and severity of the Veteran's degenerative joint disease of the thoracolumbar spine disability from September 7, 2005 to January 25, 2007. The Veteran need not be scheduled for another VA medical examination unless needed to provide the requested medical opinion. The claims file should be reviewed by the examiner, including the September 2006 VA examination report and VA treatment records. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Marenna, 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.