Citation Nr: 21041728 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 01-07 502 DATE: July 10, 2021 ORDER Prior to December 7, 2011, entitlement to a total disability evaluation based on individual unemployability (TDIU) is denied. Entitlement to TDIU from December 7, 2011, is granted. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to December 7, 2011. 2. Resolving reasonable doubt in the Veteran's favor, his service-connected lumbar spine degenerative joint disease (DJD), right lower extremity radiculopathy, and left lower extremity polyradiculopathy disabilities render him unable to secure and maintain substantially gainful employment from December 7, 2011, when the schedular requirements were met. CONCLUSIONS OF LAW 1. Prior to December 7, 2011, the criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16, 4.19. 2. From December 7, 2011, the criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1977 to May 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2001 rating decision of a Department of Veterans Affairs (VA) Regional Office that continued a 40 percent rating for the Veteran's low back disability. The extensive procedural history of this case was detailed in a July 2019 Board decision, and that procedural history is incorporated herein by reference. Of note, in the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held, in substance, that every claim for a higher evaluation includes a claim for TDIU, where the Veteran claims that his service-connected disability prevents him from working. Thus, the Board assumed jurisdiction over this issue during the then-pending increased rating claim in September 2013, and the period relevant to the appeal begins on January 2, 2001. In a July 2019 Board decision, the Veteran's claim for entitlement to TDIU was denied. The Veteran appealed this decision to the United States Court of Appeals for Veterans Claims (Court). The Court found that the Board provided inadequate statement of reasons or bases in determining the probative weight of a May 2012 private medical opinion and erred by failing to address the Veteran's March 2015 contention that medication side effects prevented seated employment. Thus, in an October 2020 order, the Court granted a Joint Motion for Remand and vacated the Board's July 2020 decision and remanded the matters for readjudication. TDIU The Veteran contends he had not worked in a substantially gainful capacity since 2003 and seeks entitlement to TDIU from at least December 2011, when he was unable to secure or follow gainful employment due to his service connected disabilities. See Appellate Brief, received February 1, 2021. A TDIU may be assigned to a veteran who meets certain disability percentage standards and is "unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities." 38 C.F.R. § 4.16 (a). To qualify for a schedular TDIU, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his 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 and a combined disability rating of 70 percent. Id. For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities resulting from common etiology or a single accident are considered as one disability. 38 C.F.R. § 4.16 (a)(2). Disabilities that are not service-connected cannot serve as a basis for a total disability rating. 38 C.F.R. § 3.341. The ultimate question of whether a Veteran is capable of securing or following substantially gainful employment is a legal determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Substantially gainful employment is an employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Also, marginal employment is not considered to be substantially gainful employment. 38 C.F.R. § 4.16 (a). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough; the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Where the percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Facts and Analysis The Board has reviewed all the evidence in the Veteran's claims file. Although there is an obligation to provide adequate reasons and bases, there is no requirement that all the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000), Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). For the period on appeal beginning January 2, 2001, the Veteran was service-connected at 40 percent for DJD of the lumbosacral spine from October 6, 1994. Effective September 26, 2003, the Veteran was granted service connection for left lower extremity polyradiculopathy (associated to the lumbar spine disability) at 10 percent disabling. The overall combined disability rating increased to 50 percent, including DJD of the lumbosacral spine at 40 percent, from October 6, 1994. Effective December 7, 2011, the Veteran was granted service connection at 40 percent for right lower extremity radiculopathy (associated with the lumbar spine disability) and increased to 20 percent disabling for left lower extremity polyradiculopathy (associated with the lumbar spine disability). The overall combined disability rating increased to 70 percent, including DJD of the lumbosacral spine at 40 percent, from October 6, 1994. Effective October 8, 2018, the Veteran's was granted an increased evaluation to 40 percent disabling for left lower extremity polyradiculopathy (associated with the lumbar spine disability). The overall combined disability rating increased to 70 percent, including DJD of the lumbosacral spine at 40 percent, from October 6, 1994, and right lower extremity radiculopathy (associated with the lumbar spine disability), from December 7, 2011. Prior to December 7, 2011, the Veteran did not meet the schedular criteria for an award of TDIU, as he did not have one disability rated separately at 60 percent or a combined rating of 70 percent, with one condition rated separately at 40 percent. Beginning December 7, 2011, the Veteran met the schedular criteria for TDIU, as he had one disability rated at 40 percent, i.e., lumbar spine disability, and his combined disability rating was at least 70 percent. The Board must now consider whether the evidence reflects that the Veteran's service-connected disabilities render him unemployable. The Veteran filed a January 2001 claim for an increased evaluation for his lumbar spine disability. In January 2010, the Veteran underwent a VA back examination and reported that he was unemployed due to back and arm problems. Moreover, he submitted formal applications for unemployable benefits in October 2012 and January 2019. See VA Form 21-8940, Veteran's Application for Increased Compensation based on Unemployability, received October 29, 2012 and January 18, 2019. The evidence of record shows the Veteran last worked as a civil engineer in drafting and site design from 1999-2003. See January 2019 VA Form 21-8940. Prior jobs listed in his Social Security Administration (SSA) records included working as a lineman, a delivery driver, an assistant counselor, a cook, a laborer, and a janitor. He had not been employed since 2003. Id. He had four years of college education and had not received any training or education since becoming too disabled to work. The Veteran indicated that his service connected left leg polyradiculopathy, right radiculopathy, and DJD was the reason he was unable to secure or maintain gainful employment. It is undisputed that the Veteran's back disability and associated bilateral lower extremity radiculopathies disabilities would prevent employment of a physically demanding nature. Indeed, he has attended several VA examinations, where the examiner determined the disabilities caused an occupational and functional impact. In June 2010, a VA spine examiner found the lumbar spine disability had significant effects on the Veteran's usual occupation as it caused problems with lifting and carrying, a lack of stamina, decreased strength, and lower extremity pain. VA peripheral nerves examinations have indicated that the Veteran could perform seated or light duties but would be impaired when performing load bearing activities due to his lower extremity radiculopathies. See e.g., May 2012, October 2013, and June 2016 VA peripheral nerve examinations. A June 2014 VA examiner expected the Veteran's back and associated radiculopathies to prevent work of a physical nature but not seated employment. Thus, the dispositive issue is whether the Veteran can pursue a substantially gainful occupation involving light or seated duties. In July 2013, VA received a SSA appeal decision that identified the Veteran was found disabled beginning July 9, 2001. See September 2003 SSA Disability Determination, received July 2013. The Veteran's severe impairments were identified as left ulnar neuropathy, hypertension, and obstructive sleep apnea. Id. He could no longer draw because of a left arm injury, had continuing back problems, and concentration issues due to medications. As part of the SSA disability process, the Veteran underwent a June 2003 examination, and the physician determined the Veteran's medication could be expected to have severe side effects and limit his effectiveness by causing distraction, inattention, and drowsiness. See Greystone Neurology Pain Center treatment record, received from SSA on September 10, 2013. SSA found that the Veteran's impairments, including moderately severe pain and the side effects of medications, made him unable to perform exertional sitting, standing, walking, and lifting requirements of even seated work or sustain a full workweek. See September 2003 SSA Disability Determination, received July 2013. In a March 2015 statement, the Veteran explained he was not capable of gainful employment, including seated or light duties. He reported that his legs burn and back hurts all the time. He walked with a cane and used a back, knee and arm brace. Further, he indicated that he was drowsy from the start of his day until it ended and listed his hydrocodone and other medications, reporting side effects of nausea, vomiting, dizziness, and drowsiness. See Veteran's Statement, received March 13, 2015. Also in March 2015, the Veteran submitted the physician certification from his May 2012 application to waive his federal student loan debt due to permanent and total disability, wherein his VA provider documented the disabling conditions as bilateral leg polyradiculopathy, and DJD of the lumbosacral spine and bilateral knees. The Veteran's limitations were noted as sitting for 30 minutes, standing for one hour, walking for a half mile with a cane, and lifting 20 pounds. See excerpt from May 2012 Federal Student Loan Discharge Application, received March 13, 2015. In February 2017, a VA spine and peripheral nerve examination was performed. The examiner noted that the Veteran did not indicate a limitation with sitting but reported an inability to walk more than two blocks due to back pain, stand more than ten minutes, and lift more than eight pounds. As such, the examiner opined that the spine disability did not impact his ability to work, while the peripheral nerve disability would only impair load bearing activities. See February 2017 VA back examination; See also February 2017 peripheral nerves examination. In January 2021, a vocational assessment was performed by a professional rehabilitation consultant, to determine the Veteran's employability due solely to his service-connected lumbar spine and bilateral lower extremity radiculopathies. The assessment included a telephonic interview and review of the Veteran's medical records and VA claims file. The Veteran reported continuous low back pain radiating into the lower extremities from at least December 2011. See January 2021 Employability Evaluation, page 2. Pain was rated at 7 out of 10 and escalated when sitting, standing or walking for more than 10 minutes at a time. He reported bending and stooping increased his pain, and he showered an average of three times per week, utilizing a bench. During flare-ups, the Veteran's bilateral radiculopathies was described as 10 out of 10 throbbing and burning pain down both legs and running into the bottom of the feet, which caused total incapacitation approximately three times each day. Id. Although the Veteran used a back brace and cane, self-treated with hot and cold pads, rubbed alcohol onto his legs, and received cortisone shots to help with pain, he reported to the vocational consultant that he struggled with interrupted sleep due to back and leg pain. See January 2021 Employability Evaluation, page 3. His medications included hydrocodone and was reported as ineffective to relieve his pain during flare-ups that occur about four times a week. In addition, the Veteran noted side effects from the prescription medication interfered with his productivity while he was still working, and since ceasing work in 2003, his attention and concentration has continued to worsen as increased pain caused sleep impairment. Id. As a result, he reported taking four to five naps throughout the day to deal with extreme fatigue. The vocational consultant opined it was at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment since December 2011 due to symptoms from his service-connected lumbosacral spine DJD, right lower extremity radiculopathy, and left lower extremity polyradiculopathy. See January 2021 Employability Evaluation, page 7. The consultant specifically noted that only the named service-connected conditions were considered in formulating the conclusion. Id. Resolving reasonable doubt in favor of the Veteran, the Board finds that TDIU is warranted from December 7, 2011, when the schedular requirements for TDIU were met. The record shows that the evidence is at least in equipoise as to whether the Veteran was precluded from obtaining and maintaining gainful employment, to include light and/or seated duties, due solely to his service-connected lumbar spine and associated bilateral lower extremity radiculopathy and polyradiculopathy. The Board acknowledges that VA examiners did not find the Veteran's service-connected lumbar spine and peripheral nerve disabilities would preclude gainful employment involving light or seated duties. See e.g., February 2017 VA back examination; See also February 2017 peripheral nerves examination. However, the "applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner." Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Based upon the private medical evidence and Veteran's credible lay statements regarding his service-connected lumbar spine and associated bilateral lower extremity radiculopathy and polyradiculopathy, he cannot sit or stand for prolonged periods, has painful and limited lumbar spine movement, bilateral lower extremity leg pain, difficulty ambulating, sleep impairment, fatigue, and impaired focus and concentration. Thus, the Board finds that from December 7, 2011, when the schedular requirements were met, the Veteran's service-connected disabilities would likely prevent him from obtaining and maintaining substantially gainful employment. Of note, the Veteran was granted SSA disability benefits effective July 9, 2001. VA must consider the findings, but the Board is not bound by disability and/or unemployability findings made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417(1991). Adjudication of VA and SSA claims is based on different laws and regulations. The Board has also considered whether referral for an extraschedular TDIU is warranted under 38 C.F.R. § 4.16 (b), but finds that the evidence does not more nearly reflect that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to December 7, 2011. The evidence of record shows he sustained a left arm injury in July 2001 that prevented his continued employment as a civil engineer. See e.g., SSA Disability Determination, received July 2013. Further, the SSA disability award indicates non-service connected disabilities, including obstructive sleep apnea, hypertension, and ulnar neuropathy, were considered severe impairments for the basis of the Veteran's SSA disability benefits. Therefore, the Board concludes that referral of this case to the Director of Compensation Service for an extraschedular TDIU consideration under 38 C.F.R. § 4.16 (b) is not warranted. After weighing the medical and lay evidence of record, and resolving reasonable doubt in favor of the Veteran, the Board finds that TDIU is warranted from December 7, 2011, but not earlier. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.16, 4.19. MICHAEL LANE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Gipson, 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.