Citation Nr: 22017235 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 09-22 032 DATE: March 24, 2022 ORDER Entitlement to a total disability rating for individual unemployability due to service-connected disability (TDIU) on an extraschedular basis prior to October 18, 2007, is granted. Entitlement to TDIU from October 18, 2007, is granted. FINDINGS OF FACT 1. Prior to October 18, 2007, the evidence of record shows that the Veteran's service-connected back disability precluded him from obtaining or maintaining substantially gainful employment. 2. From October 18. 2007, the Veteran's service-connected disabilities render him unable to obtain and maintain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to extraschedular TDIU prior to October 18, 2007, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.19. 2. The criteria for TDIU from October 18, 2007, have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.340, 3.341, 4.1, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1986 to October 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2007 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board notes the Veteran previously testified in March 2010 before a retired Veterans Law Judge (VLJ). He requested a new hearing which was held on December 2020 before the undersigned. A transcript of the hearing has been associated with the claims file. The Board previously remanded the case in January 2011 and March 2021 for additional development. The requested development has been completed to the extent possible, and no further action is necessary to comply with the Board's remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to TDIU on an extraschedular basis prior to October 18, 2007, is granted. 2. Entitlement to TDIU from October 18, 2007, is granted. VA will grant 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. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is 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 benefits based on individual unemployability. 38 C.F.R. § 4.16(a). 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). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is "whether the veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a 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. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service (Director) for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran's education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; VanHoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but 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. VanHoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). Reviewing the evidence of record, the Veteran submitted an application for TDIU in August 2006. He asserted he had last worked full time in October 2004 and was no longer able to work due to his service-connected low back disability and his lower left leg. The Veteran indicated he had completed two years of college and had training as a cook and in drafting and design. He had work experience as a cook and, most recently, in drafting and design. The Veteran noted that he was no longer able to withstand prolonged sitting or prolonged standing and was unable to walk long distance. He walked with a cane. A March 2006 treatment record reflected that the Veteran continued to struggle with his chronic pain issues as well as depression which was believed to be strongly influenced by his inability to obtain gainful employment and inability to work due to the severity of his pain syndrome. In an August 2006 VA examination, a VA examiner noted that "in review of the Veteran's records regarding his back condition, it would seem that due to his physical restrictions at present, [the Veteran] is unable to be gainfully employed, even in a sedentary position." Employment information received in August 2006 from the Veteran's former employer, V. A. S. Structures, indicated that the Veteran had worked for the company in 2003 to 2004. He had been terminated because he missed too many days due to his low back and was unable to sit or stand for long periods of time. A December 2008 treatment record noted that the Veteran was currently unemployed and had last worked in 2004. He had been unable to find a job after relocating to the area from Georgia. Another December 2008 treatment record indicated that the Veteran had been working in October 2007. He had gotten into an altercation with his employer and was arrested for trying to choke him. A diagnosis of explosive anger disorder was noted. In a December 2012 VA examination of the spine, a VA examiner referred to the findings from the August 2006 VA examination that noted the Veteran was unable to be gainfully employed, even in a sedentary position, due to physical restrictions related to his back condition. The December 2012 examiner indicated that the opinion remained unchanged and that the Veteran was precluded from seeking gainful employment in a physical or sedentary environment due to his physical limitations of sitting, standing, and walking. The Veteran's pathology had worsened. In August 2019, the Veteran requested an increase in pain medication as he was working in physical labor. He was advised he should not be taking narcotics while working around equipment or driving as it was unsafe. The Veteran reported his employer was aware he was on narcotics. In a December 2020 Board hearing, the Veteran testified that he was currently employed part time cleaning stalls. He was able to take breaks every 15 minutes and work at his own pace. The Veteran testified he used to work 50 to 70 hours a week but began taking longer and more frequent breaks to relax and recoup. He could no longer keep up with the bending and lifting the job required. Prior to October 18, 2007, the Veteran was service connected for post traumatic neuralgia, lumbosacral spine with pain and numbness radiating to the lower extremities with a 40 percent disability rating, resulting in a combined evaluation of 40 percent. From October 18, 2007, to September 7, 2016, the Veteran was service connected for post traumatic neuralgia, lumbosacral spine with pain and numbness radiating to the lower extremities with a 40 percent disability rating, unspecified depressive disorder with a 30 percent disability rating, and left lower extremity radiculopathy with a 10 percent rating (from December 31, 2012), resulting in a combined evaluation of 60 percent. From September 8, 2016, to April 23, 2021, the Veteran was service connected for post traumatic neuralgia, lumbosacral spine with pain and numbness radiating to the lower extremities with a 40 percent disability rating, unspecified depressive disorder with a 30 percent disability rating, and left lower extremity radiculopathy with a 20 percent rating, resulting in a combined evaluation of 70 percent. From April 24, 2021, the Veteran was service connected for post traumatic neuralgia, lumbosacral spine with pain and numbness radiating to the lower extremities with a 40 percent disability rating, unspecified depressive disorder with a 50 percent disability rating, and left lower extremity radiculopathy with a 20 percent rating, resulting in a combined evaluation of 80 percent. From September 8, 2016, the Veteran meets the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). From October 18, 2007, to September 7, 2016, the Veteran's combined evaluation of 60 percent meets the schedular TDIU criteria based upon the common etiology of his service-connected disabilities related to his back condition. Prior to October 18, 2007, the Veteran fails to meet the schedular percentage requirements for TDIU; however, this does not preclude the availability of a TDIU rating on an extraschedular basis under 38 C.F.R. § 4.16(b). After a careful review of the evidence, the Board finds that the Veteran has been unable to secure and follow a substantially gainful occupation by reason of his combined service-connected disabilities for the entire appeal period. Prior to October 18, 2007, the weight of the probative evidence demonstrates that the Veteran was precluded from securing or following substantially gainful employment solely by reason of his service-connected back disability. The Board recognizes that in November 2021, the Director of C&P concluded that the evidence did not support the Veteran's contention that his service-connected disability prevented all types of gainful activity for this period. However, the Board places greater probative weight on the August 2006 VA examiner's determination that the Veteran's back disability resulted in physical restrictions that would preclude gainful employment, even if sedentary. Greater probative weight is also placed on employment information received from V. A. S. Structures indicating that the Veteran had been fired due to time lost as a result of his back disability. His employer noted that he was unable to sit or stand for prolonged periods of time. For the period from October 18, 2007, the evidence demonstrates that the Veteran is precluded from securing or following substantially gainful employment by reason of his combined service-connected disabilities. The Veteran is not fit for physical or sedentary employment due to functional limitations caused by his service-connected physical and psychological disabilities. While more recent treatment records reflect that the Veteran has been working in physical labor, he is taking narcotics to treat his chronic pain and has been warned it is unsafe for him to continue to work around equipment or driving. It is unlikely that the Veteran would find a work environment that would accommodate both physical and psychological limitations caused by his service-connected disabilities. Specifically, the Board finds that the symptoms described by the Veteran, and noted by the examiners, due to his service-connected disabilities render him unemployable. As such, resolving all doubt in the Veteran's favor, the Board finds that the weight of the evidence demonstrates that entitlement to TDIU on an extraschedular basis prior to October 18, 2007, and on a schedular basis from October 18, 2007, is warranted. The evidence establishes that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation for the entire appeal period. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Silverblatt, 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.