Citation Nr: 22016674 Decision Date: 03/23/22 Archive Date: 03/23/22 DOCKET NO. 03-18 437A DATE: March 23, 2022 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a rating in excess of 40 percent for a back disability is remanded. FINDING OF FACT Resolving all reasonable doubt in the Veteran's favor, the service-connected disabilities preclude substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1970 to July 1978. In December 2021, the Board remanded this case for additional development. The Board finds that there has been substantial compliance with the remand requests. Stegall v. West, 11 Vet. App. 268 (1998). TDIU Total disability will be considered to exist when there is present any impairment of mind or body, which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341. In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. The crucial inquiry for the Board is not whether the Veteran is able to pursue a profession of choice, or any particular job. Instead, the Board must inquire as to whether the Veteran can secure and follow a substantially gainful occupation in a more general sense. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The fact that a Veteran is unemployed is not enough. It must be determined that the service-connected disabilities, without regard to advancing age, make a Veteran incapable of performing the acts required by employment. The applicable regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Moreover, whether a Veteran could perform the physical and mental acts required by employment at any time is an issue about which a lay person may provide competent evidence. If the schedular rating is less than total, a total disability rating can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Entitlement to TDIU The Veteran asserts that the service-connected disabilities preclude substantially gainful employment, and most specifically, a back disability. Service connection is established for a back disability, rated 40 percent from July 28, 1978; tinnitus, rated 10 percent from December 15, 2020; residuals of an appendectomy, rated 0 percent from July 28, 1978; and left ear hearing loss, rated 0 percent from December 15, 2020. The combined service-connected disability rating was 40 percent from July 28, 1978, and 50 percent from December 15, 2020. Therefore, the schedular requirements for entitlement to a TDIU have not been met. 38 C.F.R. § 4.16(a). However, in December 2021, the Board remanded the claim for referral to the Director of Compensation for initial consideration of whether TDIU was warranted on an extraschedular basis. 38C.F.R. § 4.16(b). The Director of Compensation Service issued an advisory opinion in January 2022 which stated that although the evidence showed that the Veteran would have difficulty sitting, standing, walking, lifting, and hearing, he did household chores and provided caregiving to his wife. Therefore, the preponderance of the evidence did not show that the Veteran was unable to obtain or maintain gainful employment due to service-connected disabilities. The Director's decision is not evidence but rather an Agency of Original Jurisdiction (AOJ) decision, and the Board must conduct de novo review of that decision. Wages v. McDonald, 27 Vet. App. 233 (2015). The Board has jurisdiction to review the entirety of the Director decision denying or granting an extraschedular rating and the Board is authorized to assign an extraschedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). The Board finds that the evidence of record shows chronic and worsening low back pain with flare ups. The service-connected back disability caused functional loss such as pain with movement, decreased range of motion, difficulty with prolonged walking, standing, sitting, bending over, lifting objects, and squatting. The Veteran used assistive devices such as a back brace and motorized wheelchair. For nearly 40 years, muscle relaxers and narcotics such as Darvocet, tramadol, oxycontin, Cyclobenzaprine, Vicodin, morphine, Roxicodone, methocarbamol, and fentanyl patches were prescribed to treat the Veteran's chronic back pain. There are conflicting reports about the Veteran's ability to secure and maintain substantially gainful employment. However, the Board finds the October 2018 private opinion to be highly probative and more probative than the other opinions of record. The examiner explained how symptoms of the service-connected back disability precluded the Veteran's ability to perform the physical acts required by employment. Additionally, the October 2018 examiner was the only examiner to fully consider the impairment caused by narcotics used to treat the service-connected back disability. The examiner stated that medications prescribed for the back disability precluded sedentary employment because they caused daytime sleepiness and grogginess and negatively affected concentration and focus. The examiner stated that the medications also limited physical employment because the Veteran required rest after taking the medications. The evidence shows that the Veteran has a high school diploma and has worked a few unskilled or semi-skilled physical jobs. However, the Veteran has not worked consistently in nearly 30 years and has no transferable skills. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board finds that while the Veteran performed activities of daily living, the service-connected back disability and treatment for the back disability, prevent the Veteran from securing and maintaining substantially gainful employment. Accordingly, resolving all reasonable doubt is resolved in in favor of the Veteran, the claim for a TDIU is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to a rating in excess of 40 percent for a back disability The Veteran has reported chronic back pain and limitation of motion due to back pain. The Veteran also reported flare ups which exacerbated the back pain. The Veteran also reported use of a back brace. During a December 2001 VA examination, the Veteran stated that with increased pain, he was unable to bend or get out of bed without assistance. He stated that he had difficulty with driving and daily activities. The Board notes that the requirement of ankylosis can be met with evidence of the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1 (2021). There is no medical opinion which adequately addresses whether chronic back pain symptoms were equivalent to unfavorable ankylosis during flare-ups, with repeated use over time, or when using the back brace. Therefore, the Board finds that remand is necessary for a VA examination. The matter is REMANDED for the following action: 1. After obtaining any necessary releases, obtain all relevant VA and private medical records not already associated with the claims file. All attempts to locate records must be documented in the claims file. 2. Then, schedule the Veteran for a VA examination to determine the severity of a back disability. All required testing should be performed. The examiner should interview the Veteran regarding symptoms and limitation caused by the disability during flare ups and with use of a back brace. A clearly stated rationale with references to the record, diagnostic tests, and medical literature should be provided. The examiner should provide thoracolumbar range of motion findings for active, passive, weight-bearing, and nonweight-bearing. The examiner should state whether there is any additional loss of function due to painful motion, weakened motion, excess motion, incoordination, fatigability, or on flare up. The examiner should state whether there are incapacitating episodes of intervertebral disc syndrome and if so, should state the duration and frequency. In providing an opinion regarding ankylosis of the thoracolumbar spine, the examiner should state whether a back disability manifested as the equivalent of ankylosis with consideration of limiting factors such as weakened motion, excess motion, painful motion, fatigability, incoordination, or on flare up or with the back brace. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E.O., 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.