Citation Nr: 22013689 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 09-34 038 DATE: March 10, 2022 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU), effective June 16, 2006, is granted. Entitlement to an initial disability rating in excess of 20 percent for chronic strain of the lumbosacral spine with degenerative disc disease and spondylosis (hereinafter "lower back disability") is dismissed. FINDINGS OF FACT 1. The Veteran's service-connected lower back disability has rendered him unable to secure or follow a substantially gainful occupation for the duration of the appeal period. 2. The Veteran is in receipt of a total disability rating for his lower back disability, which constitutes a full grant of the benefits sought on appeal. CONCLUSIONS OF LAW 1. The criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. § 4.16(b) (2021). 2. As the Veteran is in receipt of a total rating for his lower back disability, there is no further error of fact or law at issue regarding his claim for an increased rating for that disability. 38 U.S.C. § 7105(d)(5) (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served honorably in the United States Army from July 1976 to July 1979. These matters first arose to the Board of Veterans' Appeals (Board) on appeal from a January 2008 rating decision in which a Department of Veterans Affairs (VA) Regional Office (RO) granted service connection for a lower back disability. In an April 2014 decision, the Board denied entitlement to an increased initial rating for that disability. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In an August 2015 memorandum decision, the Court vacated the Board's April 2014 decision and remanded it to the Board. In March 2016, the Board remanded the issues on appeal for further evidentiary development. In an October 2020 decision, the Board granted an increased initial rating of 20 percent for the Veteran's lower back disability prior to February 22, 2011 but denied entitlement to an initial rating in excess of 20 percent. The Board also denied entitlement to a TDIU. The Veteran appealed that decision to the Court. In September 2021, during the pendency of the appeal, the parties signed a Joint Motion for Partial Remand (JMPR) vacating the October 2020 Board decision to the extent that it denied entitlement to an initial rating in excess of 20 percent for a lower back disability and denied entitlement to a TDIU. These matters now return to the Board for review. 1. Entitlement to a TDIU The Veteran has long argued that he has been unable to work due to his service-connected lower back disability. On review, for the reasons discussed below, the Board agrees that a TDIU is warranted for the entire period under review. Beginning on June 16, 2006, the Veteran is in receipt of a 20 percent rating for his lower back disability. Effective May 18, 2012, he is service connected for tinnitus (rated as 10 percent disabling) and bilateral hearing loss (noncompensable). As such, the Veteran does not meet the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a) (to qualify for TDIU, the evidence must show that a veteran is unable to secure and follow a substantially gainful occupation as a result of service-connected disability, 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). Notwithstanding, it is VA policy that a TDIU will be awarded whenever a claimant is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability or disabilities. 38 C.F.R. § 4.16(b). When, as here, the Veteran does not meet the requirements of 4.16(a), the Board may not award a TDIU in the first instance, but rather may only refer the case to the Director of Compensation Service (Director) for consideration of an extraschedular TDIU. 38 C.F.R. § 4.16(b); see also Cantrell v. Shulkin, 28 Vet. App. 382, 387 (2017). In this case, the Board referred the matter of entitlement to a TDIU on an extraschedular basis to the Director for consideration as part of its March 2016 remand. In August 2019, the Director issued a memorandum declining to recommend an award of TDIU. This finding is not binding on the Board. See Anderson v. Shinseki, 22 Vet. App. 423, 427-29 (2009) (discussing why initial determinations in extraschedular analysis by the regional office and determinations by the Director are not binding on the Board). The relevant question now is whether the Veteran's service-connected lower back disability has rendered him unable to secure and follow a substantially gainful occupation. (The Veteran does not contend that his tinnitus or hearing loss prevent him from working.) Having carefully reviewed the record, the Board finds that the evidence establishes entitlement to a TDIU solely on the basis of the Veteran's lower back disability. The Veteran filed the instant claim in June 2006. In December 2007, he was afforded a VA spine examination. The report notes the Veteran's complaints of back pain with flare-ups mainly when bending or lifting. He stated that he quit working in May 2005 because of lower back pain. He described taking pain medication three times a day, stating that this gave him temporary relief. The examiner noted that the Veteran's activities of daily living were unaffected, and that he was able to walk and drive a car. However, his recreational activity was affected; he was unable to lift or bend due to flare-ups of back pain. (The examiner did not explain the apparent inconsistency between the Veteran's activities of daily living being unaffected and being essentially unable to bend or lift without pain.) On physical examination, the Veteran had limitation of forward flexion at 75 degrees; however, he displayed increased pain, easy fatigability, lack of endurance, and decreased range of motion after repetitive-use testing. In September 2009, the Veteran filed a formal TDIU application on which he indicated that he last worked full time in May 2005. He noted that he had worked as a housekeeper for a VA Medical Center; he stated that he could no longer bend, stoop, reach, sweep, mop, empty trash, make beds, and generally was unable to perform "normal activities." In a VA Form 21-527 submitted in June 2008, the Veteran reported that, prior to the housekeeping job, he worked as a dump truck driver from October 2000 to June 2003. In December 2009, a friend submitted a statement describing the Veteran's ongoing back problems. The friend noted that the Veteran was always complaining about being in pain, that he needed a cane and a walker to help him move around, that he was unable to do housework and chores, and that he did not participate in family functions because he "can barely get off the couch." In February 2011, the Veteran was afforded a VA general examination. The report reflects the Veteran's complaints of back pain with flare-ups during which he would sometimes be unable to move. In terms of functional impairment, the examiner stated that "[t]he Veteran's degenerative disc disease of the lumbosacral spine prevents him from physical employment" and "severely [a]ffects him for sedentary employment." In December 2011, a Physical Residual Functional Capacity Assessment completed by a private physician indicated that the Veteran could continuously sit, stand, or walk for at most a half-hour at a time, and that he would be unable to lift more than five pounds. The physician further noted that the Veteran would likely be unable to squat, kneel, or crawl, and would only occasionally be able to bend or climb due to his back pain. In June 2012, the Veteran was granted Social Security Administration (SSA) disability benefits due in part to functional impairment from back pain. The record also includes unfavorable SSA decisions prior to the grant of benefits. The Board recognizes that SSA determinations are not binding on VA. See Holland v. Brown, 6 Vet. App. 443, 448 (1994). In January 2019, the Veteran received another VA examination. The report reflects the examiner's conclusion that the Veteran's lower back disability would significantly impact gainful employment. He reports being unable to sit, stand, or walk for even moderate periods of time due to back pain. Unable to perform simple tasks such as yard work due to back pain. Cannot lift objects. Activity in general is limited due to the back pain. Notably, the Veteran reported that he was able to stand for only about 30-40 minutes before he had to sit down. He reported that he back would "go out" when doing "strenuous work" multiple times per month, at which point he would be in bed for three to four days. The examiner noted that the Veteran's pain contributed to functional loss but could not estimate this loss in terms of degrees of lost range of motion. Based on the above evidence, the Board finds that the Veteran's lower back disability has been severely debilitating and can reasonably be said to have prevented him from sustaining gainful employment from the date he filed his claim for service connection. As is noted above, VA physicians have essentially opined that the Veteran's lower back pain prevented him from working following February 2011 and January 2019 examinations. The Veteran has consistently described severe back pain and flare-ups that drastically limit his ability to move, much less bend, lift, and engage in other activities that would be required of him in a work environment, particularly considering his work history in physically demanding jobs. There is no evidence indicating that his symptoms have improved over the course of the appeal period. It is difficult to imagine the circumstances under which one could be employed full-time under the weight of such disability, even in sedentary environments, and indeed the Veteran has repeatedly asserted that he was unable to hold down full-time employment due to back pain. The Board finds this assertion to be entirely reasonable and consistent with the evidence of record. Entitlement to a TDIU is warranted, pursuant to 38 C.F.R. § 4.16(b). The Board wishes to apologize to the Veteran for the extraordinary delay in granting this claim. 2. Entitlement to an increased initial rating for a lower back disability The Veteran has appealed the initial 20 percent rating assigned for his lower back disability. As explained in detail in the September 2021 JMPR of record, VA has committed several duty to assist errors with respect to this claimin particular, failing to ensure that the examinations afforded the Veteran adequately captured his functional impairment. However, the Board herein is granting a TDIU, or total rating, for the Veteran's lower back disability. The Veteran's attorney made clear in February 2022 correspondence that in the event a TDIU from June 16, 2006 onward were granted, such would be considered a full grant of the benefits sought on appeal, and the appeal of an increased initial rating could be treated as having been withdrawn. The Board agrees that there is no longer any error of fact or law at issue with respect to the claim for an increased initial rating, and the clam therefore will be dismissed without prejudice to the Veteran. See 38 U.S.C. § 7105(d)(5) (the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Minot, 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.