Citation Nr: 21040477 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 08-27 458 DATE: July 3, 2021 ORDER Beginning March 1, 2010, a total disability rating based on individual unemployability (TDIU) on an extra-schedular basis due to a service-connected back disability, is granted. FINDING OF FACT Resolving doubt in the Veteran's favor, his service-connected back disability prevents him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis have been met from March 1, 2010, but no earlier. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from October 1980 to September 1983. This matter is before the Board of Veterans' Appeals (the Board) on appeal from the February 2007 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. The rating decision confirmed and continued a 20 percent disability rating for the service-connected dorsal lumbar paravertebral myositis (hereinafter back disability). The Veteran's Notice of Disagreement (NOD) was received in October 2007. The Statement of the Case was issued in June 2008, and the Veteran's Substantive Appeal (VA Form 9), was received in July 2008. In a November 2017 decision, the Board found that a claim for a TDIU had been raised by the record and was considered part and parcel of the Veteran's claim for an increased rating for the service-connected back disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). In November 2017 and again in January 2020, the Board remanded entitlement to a TDIU for further development. Entitlement to a TDIU on an extraschedular basis. The Veteran contends that his service-connected back disability prevents him from securing or following substantially gainful employment. See January 2018 Veteran's Application for Increased Compensation Based on Unemployability VA Form 21-8940). The Veteran is service-connected for dorsal lumbar paravertebral myositis (back disability), rated as noncompensable from October 1, 1983, 20 percent from February 7, 1990, and 50 percent from August 31, 2012; pseudofolliculitis barbae, rated as noncompensable from February 7, 1990, and 10 percent from November 12, 2019; otitis externa, rated as 10 percent disabling from October 1, 1983 and noncompensable from August 1, 1986; and tinea pedis with tinea unguium, rated as noncompensable from June 14, 2006. The Veteran's total combined disability rating is 20 percent from February 7, 1990; 50 percent from August 31, 2012; and 60 percent from November 12, 2019. A total disability rating may be assigned, where the schedular rating is less than total, when it is determined that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). The question of whether a veteran is capable of substantially gainful employment is not a medical determination, it is an adjudicatory one. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Total disability ratings for compensation may be assigned pursuant to 38 C.F.R. § 4.16 (a) where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more with a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system and/or disabilities resulting from common etiology or a single accident are considered as one disability. Id. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. By reasonable doubt is meant one which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. Disabilities that are not service connected cannot serve as a basis for a total disability rating. 38 C.F.R. §§ 3.341, 4.19. In this case, the Veteran's disability rating for his service-connected disability does not meet the schedular threshold percentage requirements for consideration of a TDIU under 38 C.F.R. § 4.16(a). In this regard, the Veteran does not have one disability ratable at 60 percent or more, or, at least one disability ratable at 40 percent or more with a combined disability rating of 70 percent. Accordingly, a TDIU on a schedular basis cannot be granted. Notwithstanding, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards, should be referred to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). Therefore, all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards, should be referred to the Director of Compensation Service for extraschedular consideration. Id. In this regard, the Board cannot consider entitlement to a TDIU under 38 C.F.R. § 4.16 (b) in the first instance but must first remand the claim for referral to VA's Director of Compensation Service if such consideration is warranted. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, it 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 38 U.S.C. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16 (b)). The Director's decision is not evidence, but, rather, the de facto agency of original jurisdiction (AOJ) decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. As noted below, this matter was referred to the Director of Compensation Service for extraschedular consideration. In February 2021, the Director of Compensation Service issued an advisory opinion denying entitlement to a TDIU. The Director noted that while it was 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 initial extraschedular referral decision under 38 C.F.R. § 4.16(b) addresses whether there is sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of service-connected disabilities. Ray v. Wilkie, 31 Vet. App. 58 (2019). 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 that determination. Wages, 27 Vet. App. 233; Ray, 31 Vet. App. at 66. The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). Based on the review of the entire record, and affording the Veteran the benefit of the doubt, the Board finds that entitlement to a TDIU for the period beginning March 1, 2010, but no earlier, on an extraschedular basis is warranted. In a February 1990 lay statement, the Veteran reported that his back condition worsened. In a May 1998 VA examination, the examiner noted a diagnosis of dorsolumbar parverebral myosistis. In a September 2004 statement, the Veteran reported constant back pain and the need to take a rest while at work because he was unable to stand or sit for greater than 30 minutes. In a June 2006 statement, the Veteran reported a limited range of motion in his back. In an August 2006 statement, the Veteran reported limited range of motion in his back. In a September 2006 statement, the Veteran again reported low back pain, which had increased to a point where he was no longer able to concentrate at work. The Veteran also noted that he was experiencing poor sleep as a result. In an August 2012 VA examination, the Veteran has back pain with less movement than normal. At the time of the examination, the Veteran reported leaving his job at VA in 2010 due to his service-connected back disability. A May 2013 private back MRI indicates that the Veteran had normal alignment of the lumbar vertebrae with normal heights. There were mild degenerative changes noted in the lumbar spine with small marginal osteophytes noted at multiple levels. The joint spaces were noted to be preserved. There was bulging of the annulus at L4-5 without significant compression and right lateral disc protrusion in the right neural foramen at L4-5. The conus medullaris was noted to be in normal position and there were no spinal masses noted. A January 2014 determination statement from the Social Security Administration indicates that the Veteran filed a claim for disability in February 2010, and listed depression, forgetfulness, arthritic gait, thyroid condition, lower back pain, external otitis, nasal allergy, loss of hearing, tinea pedis, pharyngitis, and varicose veins in testicles as his disabling conditions. In a May 2017 VA examination, the Veteran reported that he continued to have back pain, used a lumbar brace and cane, and was limited in standing for greater than 10 minutes. The examiner noted an abnormal range of motion and pain. In a September 2018 Affidavit, the Veteran stated that he last worked in March 2018 as a VA supervisor. The Veteran further noted that he went on sick leave due to his service-connected back condition and that his doctor continued to extend his leave until November 2010, when he finally retired. The Veteran clarified that his job duties included traveling for at least one week per month, working long hours, and remaining seated for prolonged periods of time. The Veteran also stated that his normal commute was 45 minutes each way and that there was a lot of travel time inherent to his job. The Veteran also reported that prior to going on sick leave, he tried to reduce his workload to better cope with his service-connected disabilities. However, in doing so, the Veteran noted that his supervisor was not receptive to his request and that he continued to have a larger workload. The Veteran also stated that his back pain interrupted and prevented him from getting sleep, which affected his performance at work. Finally, the Veteran noted that his condition has worsenedrequiring the use of a cane during flare-ups that occur a couple of times per month and last for a few days and preventing prolonged walking and sitting. A November 2018 VA Form 21-8940 indicates that the Veteran worked as a supervisor at VA from August 1998 to October 2010. In the form, the Veteran indicated that he worked 64 hours per week, and that his additional duties included traveling one week per month; overseeing the military program, homeless program, seriously ill program, elderly program, radio and TV shows, minority vet program, and health fairs; serving as a service organization liaison; and participating in conferences outside of the VA. The Veteran stated that he believed that his back disability prevented him from securing or following any substantially gainful occupation and that he left his last job because of the disability. The Veteran stated that he tried to obtain employment, as a salesperson, counselor, and telemarketer, since he became too disabled to work. The Veteran also indicated that he graduated from college and received vocational rehabilitation training in the mid-1980s. In a December 2018 private employability evaluation, a vocational consultant (P.T.) opined that it was at least as likely as not that the Veteran was unable to secure and follow substantial gainful employment due to his service-connected back disability since at least 2010 to the Present. The vocational consultant reasoned that the Veteran is unable to stand for more than 10 minutes and that his wife must assist him with basic activities, to include bathing and getting out of bed. The consultant also noted that the Veteran reported that the pain he experiences causes sleeping difficulties and that, as a result, he has difficulty concentrating and that he must take naps during the day. The consultant reported that the Veteran's previous occupation falls within the sedentary physical demand level and that the Veteran's physical limitations stemming from his back disability would more likely than not preclude him from employment in any capacity, including sedentary. A November 2019 VA examination report indicates that the Veteran was diagnosed with degenerative arthritis of the spine, dorsal lumbar paravertebral myositis, and lumbar spondylosis and discogenic disease. The Veteran reported constant back pain and indicated that he is no longe able ot perform any range of motion of the thoracolumbar spine during flare ups. The Veteran was noted to have difficulty bending over and difficulty with dressing. There were no episodes requiring bedrest due to IVDS noted. The Veteran was noted to regularly use a cane and occasionally use a brace for his back condition. It was noted that the Veteran worked until 2010 as a supervisor in a federal building. The VA examiner concluded that the Veteran has some functional limitations in occupational environment and that he has difficulty to be in prolonged standing position, prolonged waking or climbing stairs. Notably, the VA examiner also concluded that if the occupational environment requires a sitting position or moderate walking for most of the time, there are no functional limitations. Based on the review of the entire record, the evidence is at least in relative equipoise as to whether the Veteran's service-connected back disability prevents him from obtaining and maintaining substantial employment. Resolving doubt in the Veteran's favor, entitlement to a TDIU on an extraschedular basis is warranted from March 1, 2010, the date the Veteran's back disability rendered him unemployable, but no earlier. TIFFANY HANSON Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Kuksova, Kseniya 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.