Citation Nr: 21041478 Decision Date: 07/09/21 Archive Date: 07/09/21 DOCKET NO. 10-44 708 DATE: July 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis from August 30, 2010 is granted. FINDING OF FACT From August 30, 2010, the Veteran's service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW From August 30, 2010, the criteria for a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1983 to November 1987. This matter is on appeal from a March 2009 rating decision In October 2015, the Veteran testified at a Video Conference hearing before the undersigned Veterans Law Judge. A transcript of this hearing is included in the claims file. Most recently, in July 2020, the appeal was remanded by the Board for further development. Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis from August 30, 2010 At the outset, the Board observes that the Veteran does not meet the schedular requirements for a TDIU prior to January 8, 2019. The Veteran contends his lumbar spine and psychiatric disabilities prevent him from securing or following a substantially gainful occupation since April 2009. Previously, the Board referred the matter of a TDIU on an extraschedular basis to the Director of the Compensation Service. In the July 2020 remand, the Board directed VA to obtain a determination from the Director of Compensation service addressing the Veteran's claim for a TDIU prior to January 8, 2019, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). The Director provided a December 2020 determination that the Veteran was not entitled to individual unemployability benefits prior to January 8, 2019. The Board finds for the reasons contained below that an extraschedular TDIU is warranted from August 30, 2010. The Veteran is service connected for degenerative arthritis of the lumbar spine, evaluated at 10 percent prior to May 24, 2011, at 20 percent from May 24, 2011, at 10 percent from January 9, 2012, and at 20 percent from March 15, 2017. The Veteran is also service connected for unspecified depressive disorder, evaluated at 30 percent from October 19, 2015. The combined evaluation for compensation is 20 percent from December 31, 2008, 30 percent from May 24, 2011, 20 percent from January 9, 2012, and 40 percent from October 19, 2015. The Veteran's combined evaluation from January 8, 2019 is 90 percent. Thus, the Veteran's service-connected disabilities did not meet the schedular criteria for a TDIU prior to January 8, 2019. A total disability rating may be assigned on an extra-schedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16 (a). If a Veteran's disability rating does not meet the threshold set forth in 38 C.F.R. § 4.16 (a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). In order to establish a total rating based upon individual unemployability due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. See 38 U.S.C. § 1155; 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). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The issue is whether the Veteran's service-connected disabilities preclude them from engaging in a substantially gainful occupation (i.e., work which is more than marginal, that permits the individual to earn a "living wage"). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran's service-connected disability or disabilities do not prevent them from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38U.S.C. §1155. "Generally, the degrees of disability specified [in the Rating Schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. § 4.1. So, above and beyond that, there must be indication of inability to work in any substantially gainful capacity for a claim of entitlement to a TDIU to prevail. VA cannot be compelled to use the Social Security Administration's (SSA's) or any other agency's definition of sedentary work or sedentary employment. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018); see also Rouse v. McDonough, No.19-5699 (U. S. Vet. App. April 13, 2021).The ultimate question of whether a Veteran is capable of securing or following a substantially gainful occupation is not a medical one; rather, that determination is for the adjudicator. 38 C.F.R. § 4.16(a); Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). However, medical examiners are responsible for providing a full description of the effects of disability upon the person's ordinary activity. 38 C.F.R. § 4.10; Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Analysis Although the Board may not in the first instance award a TDIU on an extraschedular basis, the Board is not bound by an adverse determination by the Director of Compensation Service regarding extraschedular entitlement to a TDIU because the Court has determined that the Director of Compensation Service's decision is in essence a decision by an agency of original jurisdiction and is no different than a RO's decision in terms of its effect on the Board's jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). As noted above, the schedular criteria for a TDIU are not met and the Director of Compensation Service found that entitlement to a TDIU was not warranted. See 38 C.F.R. § 4.16 (a) and (b). However, the December 2020 determination from the Director does not provide any rationale that relates to the Veteran's functional loss from his service connected lumbar spine, radiculopathy, and depressive disorder disabilities and the impact of this functional loss on his past relevant work in construction. The Director noted the Veteran reported a four-year college education which indicated an aptitude for adaption and learning, but that his prior work history was in construction. While Director acknowledged a March 2013 Social Security Administration (SSA) decision the Veteran could not perform his past relevant work due to lumbar spine and psychiatric disabilities, the Director did not note or analyze any of the medical record. While the Veteran reported four years of college on his VA 21-8940, the March 2013 SSA determination indicates the Veteran did not have more than a high school education. The Board notes an October 2011 psychiatric examination indicates the Veteran received an associate's degree in Business, rather than a four year college degree. Here, the Board also notes the March 2013 SSA Administrative Law Judge (ALJ) determined the Veteran's residual functional capacity was less than sedentary based on his lumbar spine and mood disorder disabilities. See March 2013 Decision. The ALJ noted the Veteran would be limited to sedentary work except lifting and carrying in excess of 10 pounds occasionally, with the ability to stand and walk two to three hours and sit four to five hours in an eight-hour workday. The ALJ also determined the Veteran would need the ability to stand, sit, or walk at his discretion and his radiculopathy reduced his residual functional capacity to less than sedentary. The ALJ noted the Veteran reported he had not engaged in substantial gainful activity (under SSA regulations) since August 30, 2010. In regard to the medical evidence of record, imaging results from February 2009 of the Veteran's lumbar spine that showed a mild broad bulge of annulus with tear in the posterior aspect of the annulus at L3-L4, central disc herniation at L4-L5 with tear in the posterior aspect of the annulus, and a mild bulge of annulus at L5-S1. See February 2009 Examination. The February 2009 assessment was lumbar spine degenerative disc disease with radiculopathy and moderate spinal stenosis at L4-5 with facet degenerative arthritis. The February 2009 examiner also noted the Veteran reported an inability to perform activities of daily living, such as rising from a seated position or walk during periods of flare-ups and that he required the assistance of others during flare-ups. The examiner found these reports consistent with the Veteran's imaging results. The Veteran was examined in May 2011 and the examiner opined the Veteran is essentially unable to perform activities of daily living (ADL) independently or his usual occupation jobs which are all labor in nature during flare-ups. The examiner also noted that outside of flare-ups, he would be capable of ADL but incapable of work that required repetitive use of the lumbar spine such as lifting, bending, stooping, kneeling, or continuous standing and walking. In addition to the findings from the February 2009 examination and the May 2011 examination, the Veteran was noted to have at least four weeks but less than six weeks of incapacitating episodes per year at a January 2012 VA examination due to intervertebral disc syndrome, which is consistent with findings from the February 2009 and May 2011 VA examinations. In October 2015, the Veteran testified that he had at least 2 to 3 weeks flare-ups of his low back disability per year. He complained of constant pain and difficulty walking. His last flare-up was in 2009, but he denied get any treatment specifically related to that incident with the exception of treatment at a county hospital. He testified that the treats his low back disability with a TENs unit, heat, and ice. He testified that 2 or 3 weeks a year he was unable to do anything due to his low back disability and complained of constant pain. The evidence also includes August 2017 and October 2017 VA examinations showing an significant impact from lumbar spine disability on the Veteran's ability to rise from a prone or seated position, lift, push, pull, limited ability to stand or remain seated in one position for extended periods and VA psychiatric examination showing depressed mood, chronic sleep impairment, and disturbances in mood and motivation. In sum, the Board finds the most probative evidence as to unemployability is May 2011 opinion regarding functional limitations from flare-ups due to lumbar spine disability and the March 2013 ALJ assessment of the Veteran's less than sedentary residual functional capacity. These opinions are competent medical and occupational evidence to support the finding that the Veteran's functional impairments regarding the impact of flare-ups of lumbar spine pain precluded his ability to work in his past relevant work. This evidence is also consistent with the findings from the February 2009 examination and the March 2013 SSA determination. Furthermore, the Veteran's contentions of exceptional circumstances regarding flare-ups are consistent with the medical evidence of record showing limitations in ADL and occupational functioning. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24 Vet. App. 428 (2011). Further, given his work history in manual labor and his limited education, the Board finds it unlikely he has transferrable skills that would allow him to have obtained and maintained sedentary work from August 30, 2010. Finally, the Board finds that the issue of entitlement to SMC for aid and attendance has not been raised by the record and is not before the Board at this time, as the evidence of record does not indicate that the Veteran is rendered so helpless due to his service-connected disabilities so as to require regular aid and attendance of another person during this period. See Akles v. Derwinski, 1 Vet. App. 118 (1991). For the foregoing reasons, the Board finds that the Veteran's service-connected disabilities precluded him from securing or following a substantially gainful occupation from August 30, 2010 based on his reports and the March 2013 SSA determination. Prior to August 30, 2010, the Veteran was engaging in substantially gainful activity and thereafter his lumbar spine disability prevented his past relevant work. In conclusion, the preponderance of the evidence supports entitlement to a TDIU from August 30, 2010 an extraschedular basis. 38 U.S.C. § 5107(b). ROBERT C. SCHARNBERGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Trickey 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.