Citation Nr: 21042120 Decision Date: 07/12/21 Archive Date: 07/12/21 DOCKET NO. 15-45 413 DATE: July 12, 2021 ORDER A total disability rating based on individual unemployability (TDIU) is granted for the period from September 11, 2014 through August 20, 2018. VETERAN'S CONTENTIONS The Veteran contends that he was unable to obtain or maintain gainful employment prior to August 21, 2018 due to his service-connected disabilities. FINDING OF FACT For the period from September 11, 2014 through August 20, 2018, the Veteran was unable to obtain or maintain gainful employment due to his service-connected low back disability. CONCLUSION OF LAW The criteria for a TDIU are met for the period from September 11, 2014 through August 20, 2018. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(b), 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1970 to July 1972. This matter comes to the Board of Veterans Appeals (Board) on appeal from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. Jurisdiction is currently with the RO in Albuquerque, New Mexico. The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in August 2018 and a transcript of the hearing has been associated with the claims file. The Board remanded the appeal for additional development in February 2019 and December 2020. Entitlement to a total disability rating based on individual unemployability (TDIU) for the period prior to August 21, 2018 A TDIU is granted where a veteran's service-connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341(a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). At the outset, the Board notes that prior to August 21, 2018 service connection had been established for degenerative joint disease, lumbar, residuals, fractures, transverse process (rated as 20 percent disabling); radiculopathy, right lower extremity associated with degenerative joint disease, lumbar, residuals, fractures, transverse process (rated as 20 percent disabling); and radiculopathy, left lower extremity associated with degenerative joint disease, lumbar, residuals, fractures, transverse process (rated as 10 percent disabling). The Veteran did not have one disability rated at least 60 percent disabling; or two or more disabilities, with at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Thus, the Veteran did not meet the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a) prior to August 21, 2018. However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities are to be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards. Id. In response to a December 2020 Board remand, the RO referred the case to the Director of VA's Compensation Service for extraschedular consideration of a TDIU and the Director of Compensation Service issued a February 2021 memorandum that weighed against the Veteran's claim for extra-schedular under 38 C.F.R. § 4.16(b). However, although the Director's decision is important in that it allows the Board to consider entitlement to an extraschedular TDIU in this decision, it is not binding. 38 C.F.R. § 4.16; Wages, 27 Vet. App. at 233 (The Board is authorized to award extraschedular TDIU after obtaining the Director's decision. The Board is not bound by Director's decision in deciding whether to award TDIU). As the Director has addressed extraschedular consideration for TDIU under 38 C.F.R. § 4.16(b) in the first instance, the Board may now address whether a TDIU is warranted on an extraschedular basis prior to August 21, 2018. After reviewing the evidence of record, the Board finds that for the period from September 11, 2014 to August 20, 2018, the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected low back disability. In this regard, the record reflects that the Veteran completed four years of high school education. Since service, the Veteran reported primary employment working as a shipper and receiver in warehouses moving boxes. Regarding his current ability to obtain and maintain substantially gainful employment, the evidence of record includes a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in which the Veteran indicated that he last worked full-time on September 10, 2014 and became too disabled to work on September 10, 2014. The Veteran testified during the August 2018 Board hearing that he stopped working because he could no longer lift. Turning to the medical evidence of record, in an August 2014 VA spine examination report an examiner opined that the Veteran's thoracolumbar spine negatively impacted his ability to work. The examiner reasoned that the Veteran experienced increased low back pain with prolonged or heavy lifting, repetitive bending, and twisting at the waist. In a December 2019 VA spine examination report an examiner opined that the Veteran's pain medication for his low back disability negatively impacted his ability to function in a work environment in that the medications (Gabapentin, Cyclobenzaprine, and Etodolac) cause drowsiness, which could cloud his thoughts, making it challenging for him to perform both physical and non-physical tasks. VA treatment records document that the Veteran has been taking medication for his low back disability including Gabapentin and Etodolac since prior to August 21, 2018. See March 2015 VAMC Dallas Records. See also May 2016 VAMC Dallas Records. Therefore, after reviewing the evidence of record and resolving all doubt in the Veteran's favor, the Board finds that for the period from September 11, 2014 (the day after the Veteran last worked full time) to August 20, 2018, the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected low back disability. See Gilbert, 1 Vet. App. 54. See also 38 U.S.C. § 5107. In making this determination, the Board has considered the Veteran's level of education and his primary employment history of working as a shipper and receiver in warehouses moving boxes; a position which the Veteran indicated required lifting and carrying heavy boxes. The Board finds the opinions of the VA examiners to be particularly probative, insofar as they determined that the Veteran's low back disability (including medications for pain) would impact both physical and non-physical tasks. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.