Citation Nr: 22016402
Decision Date: 03/22/22	Archive Date: 03/22/22

DOCKET NO. 16-01 334
DATE: March 22, 2022

ORDER

Entitlement to a total disability due to unemployability (TDIU) effective July 11, 2016, is granted.

FINDING OF FACT

The evidence of record showed the Veteran's disabilities precluded him from securing or following substantially gainful employment from July 11, 2016.

CONCLUSION OF LAW

The criteria for entitlement to a TDIU effective July 11, 2016, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(a), (b).

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Marine Corps from March 1970 to April 1972. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2019 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). 

The Board issued a remand in September 2020 instructing the RO to refer the case to the Director of Compensation Service (Director) for extra-schedular TDIU consideration. The RO obtained a December 2020 Advisory Opinion from the Director. RO substantially complied with the September 2020 remand directives. However, the Board issued another remand in March 2021 because the Veteran had an increased rating claim pending before the RO. Adjudication was necessary prior to the adjudication of the TDIU claim by the Board. 

A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions, and imposes upon VA a concomitant duty to ensure compliance with the terms of the remand. See Stegall v. West,11 Vet. App. 268, 271 (1998). The RO adjudicated the increased rating claim and issued a Supplemental Statement of the Case for the TDIU claim. The Board finds that the RO substantially complied with the March 2021 remand directives. The Board notes that prior to remand the claim on appeal was entitlement to a TDIU. A November 2021 rating decision granted TDIU effective February 13, 2020. As the November 2021 rating decision does not encompass the entire period on appeal for this issue, the claim has been recharacterized as entitlement to a TDIU effective earlier than February 13, 2020. 

Entitlement to an earlier effective date for TDIU.

The Veteran contends that he is entitled to TDIU prior to February 13, 2020, because his service-connected disabilities rendered him unable to work. On the January 2022 Appellate Brief, the Veteran's representative wrote that the effective date of his TDIU should be February 26, 2013, on an extra-schedular basis. Moreover, the representative wrote that the Veteran was self-employed as a truck driver working 50 hours a week until February 13, 2013. At this point, his service-connected disabilities had become so severe that he was no longer able to continue his employment. He was awarded Social Security Administration (SSA) benefits effective November 1, 2012. See also May 2019 Statement. 

Regulation

Generally, total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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. For the purpose of one 60 percent or one 40 percent disability in combination, disabilities resulting from a common etiology or a single accident will be considered as one disability. 38 C.F.R. § 4.16 (a).

However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned on an extra-schedular basis by Director when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16 (b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to Director is so warranted for extra-schedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001).

In determining whether a TDIU is warranted, consideration may be given to a Veteran's level of education, special training, and previous work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16. The determination of whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities is a factual determination rather than a medical question. Therefore, responsibility for the ultimate determination of whether a Veteran can secure or following substantially gainful employment is placed on the VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). 

For purposes of the regulation, disabilities resulting from a common etiology or a single accident are considered to be "one disability," and their ratings are combined to determine eligibility. The effective date of the award of a TDIU shall be the date entitlement arises but shall not be earlier than the date of receipt of the application, unless such entitlement arose within the one-year preceding receipt. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 

A "claim" is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. See 38 C.F.R. § 3.1(p). "Date of receipt" of a claim, information, or evidence means the date on which a claim, information, or evidence was received by VA. See 38 C.F.R. § 3.1(r). Any documented communication from, or action by, a veteran indicating intent to apply for a benefit under laws administered by VA may be considered an informal claim. See 38 C.F.R. § 3.155(b).

Evidence

The first day the Veteran was service connected for any disability was December 1, 2007. From December 1, 2007 to March 5, 2012, the Veteran's overall combined evaluation for compensation was 10 percent disabling. During this time, he was service connected for lumbar strain at 10 percent disabling. For this period, the percentage rating of his disabilities did not meet the threshold percentage required to establish eligibility for schedular TDIU pursuant to 38 C.F.R. § 4.16 (a).

From March 6, 2012, to August 9, 2016, the Veteran's overall combined evaluation for compensation was 30 percent disabling. During this time, he was service connected for right lumbar radiculopathy at 20 percent disabling and lumbar strain at 10 percent disabling. For this period, the percentage rating of his disabilities did not meet the threshold percentage required to establish eligibility for schedular TDIU pursuant to 38 C.F.R. § 4.16 (a).

From August 10, 2016, to October 9, 2016, the Veteran received a 100 percent temporary total evaluation based on convalescence. Temporary total disability convalescence is separate from TDIU and may not go beyond a prescribed period of time. 38 C.F.R. §§ 4.15, 4.16, 4.30. As TDIU benefits are only available where the schedular rating is less than total, the period covered by the temporary total rating is not eligible for TDIU consideration. 38 C.F.R. § 4.16(a).

From October 10, 2016, to June 26, 2017, the Veteran's overall combined evaluation for compensation was 30 percent disabling. During this time, he was service connected for right lumbar radiculopathy at 20 percent disabling and lumbar strain at 10 percent disabling. For this period, the percentage rating of his disabilities did not meet the threshold percentage required to establish eligibility for schedular TDIU pursuant to 38 C.F.R. § 4.16 (a).

From June 27, 2017, to February 12, 2020, the Veteran's overall combined evaluation for was 40 percent disabling. During this time, he was service connected for left lower extremity radiculopathy at 10 percent disabling, right lumbar radiculopathy at 20 percent disabling, lumbar strain at 10 percent disabling, tinnitus at 10 percent disabling, hearing loss with a noncompensable rating, and sacr associated with lumbar strain with a noncompensable rating. For this period, the percentage rating of his disabilities did not meet the threshold percentage required to establish eligibility for schedular TDIU pursuant to 38 C.F.R. § 4.16 (a).

Throughout the period on appeal, the Veteran has not been service connected for a single disability rated at 60 percent disabling or have a 70 percent combined evaluation with at least one disability rated at 40 percent. Therefore, a schedular TDIU cannot be considered for the Veteran's claims for that time. However, the Board may consider extraschedular TDIU. 

During the May 2012 VA examination for lumbar strain, the Veteran reported that he continued work as a truck driver at that time. On the May 2012 VA hearing loss examination, it was also noted that the Veteran was still working as a truck driver.  The examiner wrote that the Veteran's hearing loss impacted his ability to work. He had trouble deciphering sounds when there was a lot of people or too much noise. His tinnitus did not impact his ability to work. On the February 2013 VA examination for peripheral nerves, the examiner wrote that the Veteran's peripheral nerve condition impacted his ability to work. The examiner explained that because of continued back pain and lumbar radiculopathy, it might affect physical employment status. In March 2013, the Veteran visited Neurological Associates. While there, he reported that his leg weakness was sufficient to cause his leg to give out. This resulted in some falls. He had great difficulty working due to his progressive impairment. He was a truck driver/owner operator.  

The Veteran submitted a Declaration of Status Dependents form in April 2013 . On the form, he wrote that he had not worked since November 1, 2012. While seeking an increase for lumbar strain, the Veteran testified a March 2019 Board hearing that he drove trucks for his occupation, but he quit working due to the severity of his disabilities. He began receiving Social Security. 

A July 11, 2016, Neurosurgical Associates Record recorded the Veteran's report of worsened back and leg problems. He described significant bilateral, but especially right sided lower back pain, upper buttock pain, leg pain, and diffuse numbness and loss of sensation in the right leg. The physician noted that this pain involved the whole leg and the Veteran described episodic sharp pain down the front of the leg and into the foot. The physician also noted the Veteran had extensive conservative treatment including numerous epidural shots under the care of Dr. O. The physician summarized by stating that the Veteran was almost certainly symptomatic with respect to pain in the back and right more than left leg from the severe lumbar stenosis. In subsequent August 2016 operative report, the Veteran underwent L3-L4 and L4-L5 interlaminar hemilaminectomy, medial facetectomy and foraminotomy, placement of CoFlex interlaminar stabilization devices. 

The August 2017 VA examiner wrote that the Veteran's hearing loss did not impact his ability to work. A January 2018 Central Jersey Neurology Associate record showed the Veteran had patch sensory loss in his right lower extremity. During the March 2019 Board hearing for increased ratings, the Veteran testified that he drove big trucks for a living and had to quit driving due to his disabilities. Thereafter, he began receiving SSA benefits, because he was disabled. SSA records indicate the Veteran started receiving benefits in April 2013 and the primary diagnosis was disorder of the back, discogenic and degenerative. He demonstrated the maximum sustained work of sedentary. He had a GED and he became disabled as of November 1, 2012. 

During an April 2019 VA examination, the Veteran was re-evaluated for his service-connected peripheral nerves. The examiner wrote that the Veteran's condition impacted his ability to work. He was no longer able to use his right foot for driving. 

The Board issued a remand in September 2020 instructing the RO to refer the case to the Director for extra-schedular TDIU consideration. The Board notes that entitlement to TDIU is a legal determination made by the Board. Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009). The Director's decision is a preliminary determination of the claim, but it is not binding on the Board. The Director issued an advisory opinion in December 2020. The Director wrote that:

"The Veteran had a combined 60 percent evaluation which included right lumbar radiculopathy 20 percent, lumbar strain 20 percent, right lumbar peroneal nerve radiculopathy 20 percent, tinnitus 10 percent, radiculopathy left lower extremity 10 percent, scar and bilateral hearing loss evaluated as non-compensable. The Veteran had some high school education with work experience as a truck driver. The evidence showed the Veteran last worked full-time on February 13, 2013. SSA granted entitlement, showing inability to work due to service-connected back and non-service-connected mental condition. Medical evidence showed limitations to truck driving due to use of foot work with no evidence of limitations to sedentary employment.

The Veteran has service-connected conditions which could have functional impact and impair prolonged activities. As noted above, a high rating in-itself recognizes that the impairment makes it difficult to obtain and keep employment. The American workplace has had a dramatic shift in the labor force over the last several decades. Americans generally have less strenuous jobs compared to those of years ago. The decline is due in part to the increasing reliance on computers, Internet, and e-mail. There are many jobs in the workplace that require only light activity. In addition, technological advances (such as communication devices and adaptive equipment) have broadened employment opportunities for the disabled with reasonable accommodations that were not previously available. This decision evaluates whether the Veteran, because of SC disabilities, is incapable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). There is no evidence of inability to perform sedentary employment due to service-connected conditions."

Conclusion

In this case, the Veteran filed for TDIU April 21, 2019. The Veteran was granted TDIU effective February 13, 2020. On February 13, 2020, the Veteran was evaluated for his service-connected disability of perihernial nerves. During the examination, the Veteran reported that he retired as a truck driver in 2016. He could walk half a block on level ground at a slow pace, stand for 5 minutes, and lift and carry 5 pounds. 

The Board finds that entitlement to TDIU is warranted effective July 11, 2016. Although the Veteran did not file an unemployability claim form until April 21, 2019, the Board finds that a claim was pending prior to that time pursuant to Rice v. Shinseki, 22 Vet. App. 447, 455 (2009).  

The effective date for TDIU shall be the date entitlement arose such as the date of receipt of the application for TDIU. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. However, the effective date can be up to one year preceding the receipt of the application for TDIU. When entitlement to a TDIU is raised during an appeal for an increased rating, it is considered part and parcel of the underlying increased rating claim. 

The Veteran was found by the Social Security Administration (SSA) to be disabled from work as early as April 2013, however, the SSA considered nonservice-connected mental disorder. The Board may not consider impairment from that disorder when determining the TDIU claim.  Similarly, impairment from a nonservice-connected cervical spine disorder (C4-7 fusion), coronary artery disease status post coronary stents, diabetes, lung problems, and throat cancer which were also noted in the SSA records also may not be considered. The Board may only consider service-connected disability when considering a claim for TDIU. 

Moreover, although he was considered to be disabled under SSA regulations, as part of the SSA decision, regarding his residual functional capacity, it was noted that "Based on the seven strength factors" he demonstrated the maximum sustained work capability for sedentary work. Although the SSA found the Veteran to be disabled since 2013, the Veteran reported during the February 2020 examination that he did not stop working until 2016. This is supported by the record that shows the Veteran underwent surgery in August 2016. 

Finally, the Board notes that a medical opinion from Amit Lahav, M.D., submitted by the appellant dated in February 2021 indicates that the Veteran has been experiencing right lower extremity muscular atrophy, loss of strength and foot drop related to his service-connected right radiculopathy since at least 2017, and that as a result he is rendered unable to engage, secure or hold a gainful occupation other than one involving sedentary employment.

In summary, evidence of record supports a TDIU effective date on July 11, 2016, because it shows the Veteran's service-connected disabilities significantly increased in severity warranting surgery and precluding him from being able to participating in any regular substantially gainful employment consistent with his occupational experience. However, the evidence from prior to that date does not show unemployability due to service-connected disabilities.  Accordingly, the Board extends the TDIU rating back to July 11, 2016, but no earlier.

 

MICHAEL MARTIN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	T. Harris, Attorney Advisor

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.