Citation Nr: 22018118 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 17-47 978 DATE: March 28, 2022 ORDER Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) is granted from January 10, 2013 to June 14, 2016. FINDING OF FACT From January 10, 2013 to June 14, 2016, the Veteran's back disability and left lower extremity radiculopathy precluded substantially gainful employment. CONCLUSION OF LAW The criteria for an extraschedular TDIU are met from January 10, 2013 to June 14, 2016. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from September 1983 to November 1985. This matter comes before the Board of Veteran's Appeals (Board) on appeal from a November 2013 rating decision of a Department of Veteran's Affairs (VA) Agency of Original Jurisdiction (AOJ). In this regard, the Board observes that the November 2013 rating decision never became final, as the Veteran submitted a timely notice of disagreement in June 2014. The Veteran testified before the undersigned Veteran's Law Judge in June 2021. The Board remanded this matter in September 2021 to the Director of the Compensation Service to determine if TDIU is warranted, prior to June 15, 2016, on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). The Veteran asserts that he is entitled to TDIU benefits. As this matter was raised on a derivative basis, as part and parcel of his increased rating claim for a back disability and associated radiculopathy, this matter is considered to be before the Board from January 10, 2013. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board previously granted a schedular TDIU from June 15, 2016 and special monthly compensation based on the Veteran's need for regular aid and attendance, from January 10, 2013. Both awards stem from the Veteran's service-connected back disability and left lower extremity radiculopathy, which share a common etiology. Prior to June 15, 2016, the Veteran's current percentage ratings do not meet the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a). VA policy is to grant a TDIU in all cases where service-connected disabilities preclude gainful employment, regardless of the percentage evaluations. 38 C.F.R. § 4.16(b). However, the Board is prohibited from assigning an extraschedular TDIU without first referring the claim to VA's Director of Compensation Services. Id.; Bowling v. Principi, 15 Vet. App. 1 (2001). Thus, the Board referred this matter to the Director of Compensation Services for consideration of entitlement to a TDIU under the provisions of 38 C.F.R. § 4.16(b). The Director of Compensation Service issued an advisory opinion against an extraschedular TDIU in January 2022, and the AOJ denied an extraschedular TDIU in the January 2022 Supplemental Statement of the Case. Of note, the Director of Compensation Service conceded that the Veteran's service-connected conditions caused functional limitations, but found that the preponderance of the evidence did not show that the Veteran was unable to maintain gainful employment due to his service-connected conditions. The September 2021 Board decision included detailed discussion of the criteria for a schedular TDIU, including the economic and non-economic components thereof. These same criteria apply equally to an extraschedular TDIU, and the Board incorporates it prior discussion of these criteria herein. Regarding the economic TDIU component, the Veteran has not been engaged in substantial and gainful employment during the appeal period. See, e.g., October 2013 VA Form 21-4192 (showing an end date of employment in November 2010 due to "medical/health issues"). This is in accord with the economic component of entitlement to a TDIU. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Regarding the non-economic component, the Veteran's education background includes four years of college and less than a year of business school, with additional training in Hebrew. See id.; November 2016 VA Form 21-8940. His prior positions included as a card dealer, film editor (part time), driver's assistant (part time), kennel keeper (part time), senior claims representative with a cellular phone insurance company, and residential counselor. See Social Security Administration (SSA) work history report; January 2013 VA Form 21-8940. Initially, the Board notes that the SSA found that the Veteran has been disabled, or unable to engage in any substantial gainful activity by reason of physical impairment, since November 9, 2010, before the appeal period. A February 2012 SSA disability determination lists cerebrovascular disease as a primary diagnosis and coagulation defects as a secondary diagnosis. The Board notes that consideration may not be given to the impairment caused by the nonservice connected cerebrovascular disease and coagulation defects when determining whether an individual is entitled to a TDIU (schedular or extra-schedular). See 38 C.F.R. §§ 3.341, 4.16, 4,19. Thus, this evidence weighs against the claim. However, other evidence of record persuasively supports an extraschedular TDIU. First, the Veteran is in receipt of special monthly compensation due to the need for regular aid and attendance due to his back disability during this period, which is demonstrative of significant impairment in activities of daily living, including employment. Moreover, in a July 2016 examination report, dated just one month outside of the period for extraschedular consideration, a VA physician assistant in neurology determined that the Veteran could not be gainfully employed in a physical and/or labor type job. Notably, at that time the Veteran reported severe left lower extremity numbness and tingling since before his stroke in 2010, and that because of his back he was no longer able to do any sort of physical labor-type employment. Just two months later, that same examiner, who reviewed the July 2016 VA examination report, stated again that the Veteran could not be employed in a physical labor position, but indicated that he "may" be able to entertain sedentary employment. The use of "may" is speculative and non-probative, and the Board affords the Veteran the benefit of the doubt regarding an inability to engage in sedentary employment. The February 2015 VA back examiner noted episodic daily back pain (with pain up to 8 of 10 intensity), left lower extremity muscle atrophy, and an inability to bear weight on the left lower extremity. Further, the examiner noted that the Veteran's peripheral nerve condition impacted his ability to work, in that he could walk short distances only, and could not place any weight on the left lower extremity. Additionally, the August 2013 VA peripheral nerves examiner determined that the Veteran's left lower extremity radiculopathy impacted his ability to work, noting the Veteran's medical history in which he reported an inability to perform any physical work due to his back disability. Notably, this is the same examiner who evaluated the Veteran in July 2016. As in 2016, the Veteran reported severe left lower extremity numbness and tingling since before his stroke in 2010 at this time. The examiner noted significantly reduced strength trophic changes, and absent sensation in the Veteran's left lower extremity. Moreover, the Veteran presented with an abnormal gait, and could only walk very slowly and off-balance with a cane for a few steps. The examiner was unable to determine what portion of the Veteran's gait issue was attributed to the Veteran's sciatic (versus his stroke), but the Board affords the Veteran the benefit of the doubt in this regard. See generally Mittleider v. West, 11, Vet. App. 181 (1998) (holding that if it is not medically possible to distinguish the effects of service-connected and nonservice-connected conditions, the reasonable doubt doctrine mandates that all signs and symptoms be attributed to the Veteran's service-connected condition). Of note, the August 2013 back conditions examiner opined that the Veteran's back disability did not impact his ability to work, also noting no functional loss. However, the examiner contrarily noted painful flare-ups and an inability to perform repetitive use testing. Further, the examiner noted that the Veteran did not have radiculopathy, but contrarily found complete absence of strength and no sensation in the left lower extremity, which is a more severe finding than the contemporaneous peripheral nerves examiner, who determined the Veteran's ability to work was impacted due to his peripheral nerve condition. The Board will resolve this reasonable doubt in favor of the Veteran, and finds that this is a product of different examiners describing the Veteran's disability in different terms. The Veteran has reported that prolonged standing, walking, sitting, or lying down causes excruciating pain. See June 2014 written statement. Furthermore, the Veteran testified that he lost several jobs prior to his November 7, 2010 stroke, due to the severity of his back disability. See June 2021 Board Hearing at 7. During his Board hearing, the Veteran also indicated that he was unable to perform sedentary work, as sitting causes "waves of pain that go up and down," his back and down his left leg. Id. Given these findings, the Board's prior award of a schedular TDIU based on similar evidence, and the benefit of the doubt doctrine, the Board finds that the overall severity of the Veteran's back disability described above precluded substantially gainful employment for the period in question. Hence, entitlement to an extraschedular TDIU is warranted from January 10, 2013 to June 14, 2016. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Saumur, 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.