Citation Nr: 25004441 Decision Date: 04/01/25 Archive Date: 04/01/25 DOCKET NO. 18-53 239A DATE: April 1, 2025 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis, for the period on appeal prior to October 3, 2015, is granted. FINDING OF FACT For the period on appeal, the Veteran's service-connected disabilities have rendered him unable to secure and follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to TDIU on an extraschedular basis have been met for the period on appeal prior to October 3, 2015. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 4.16(b) (2024). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from December 1953 to September 1955. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board on several occasions. In October 2021, the Veteran testified in a hearing before the undersigned Veterans Law Judge. A transcript of that proceeding is of record. Most recently, in August 2024, the current issue was remanded for additional development and referral to the Director of Compensation Services (Director) for extraschedular evaluation. The full procedural history of the claim was detailed in the Board's August 2024 remand decision. The matter has now been returned to the Board for further appellate action. Entitlement to a TDIU rating on an extraschedular basis prior to October 13, 2015. As of October 13, 2015, the Veteran is in receipt of a combined 80 percent rating and has been awarded entitlement to a TDIU from that date. Prior to that date, however, the Veteran has a combined rating of 60 percent from October 15, 2011, and a combined rating of 50 percent from October 6, 2009. Those combined ratings are comprised of the following evaluations and corresponding effective dates: service-connected back disability, 40 percent from October 6, 2009; right lower extremity radiculopathy, 40 percent from October 13, 2015; left lower extremity radiculopathy, 10 percent from October 6, 2009, 40 percent from October 13, 2015; bilateral hearing loss, 10 percent from October 15, 2011, 20 percent from October 16, 2014, and 30 percent from June 18, 2020; tinnitus, 10 percent from May 13, 2011; and scar of the midline lumbar spine, 10 percent from October 13, 2015. When percentage standards for consideration of TDIU on a schedular basis are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disabilities, employment, and educational background. It must be shown that the service-connected disabilities produce unemployability without regard to advancing age. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.321, 3.341, 3.341, 4.16, 4.19. As the Veteran does not meet the schedular criteria for a TDIU (see 38 C.F.R. § 4.16(a)), his claim has been considered under the criteria of 38 C.F.R. § 4.16(b). In a January 2025 advisory opinion, the Director denied the claim of entitlement to a TDIU on an extraschedular basis. Accordingly, as the Veteran's claim of entitlement to a TDIU on an extraschedular basis has been addressed by the Director, the Board now has jurisdiction to address the merits of the Veteran's claim. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). The Board preliminarily notes that the Director's opinion expressed within the January 2025 decision, is not considered as evidence in the Board's review of the claim. Turning to the evidence of record, pursuant to the Board's August 2024 remand directives, retrospective opinions concerning the impact of the Veteran's service-connected disabilities prior to October 13, 2015, were obtained. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In October 2024, a VA examiner provided an opinion addressing the collective impact of the Veteran's service-connected disabilities during the period on appeal. See October 2024, VA Examination Report (associated with the claims file in December 2024). The examiner opined that the Veteran would have been limited to sedentary work and unable to lift greater than 15 pounds, perform tasks requiring bending to reach low objects, or tasks requiring prolonged standing or walking. Id. In September 2024, another VA examiner provided an opinion expressing that prior to October 13, 2015, the Veteran's lower extremity radiculopathy disability caused difficulty with lifting, pushing, pulling, standing, and walking long periods. See September 2024, VA Examination Report. The examiner also detailed that the Veteran would have experienced difficulty with driving long distances and/ or sitting at a desk for long periods due to pain and weakness in the back with numbness and tingling of the lower extremity which would cause the need to take frequent breaks to reposition, shift weight, and relieve pressure of the sciatic nerve. Id. The examiner stated that these limitations would decrease the Veteran's work productivity and efficiency. Id. An additional opinion was obtained addressing the Veteran's service-connected bilateral hearing loss and tinnitus disabilities. See October 2024, VA Examination Report. However, the examiner found that with appropriately fitted hearing aids, these disabilities would not have caused any functional limitations for the Veteran during the period on appeal. Id. In October 2023, the Veteran submitted a private medical opinion in support of his claim. The opinion was authored by the Veterans longstanding physical therapist (PT). See October 2023, Private Medical Report. In this record, the private PT details that she has been treating the Veteran two to three times per week for his lumbar spine disability. The report goes on to express that from October 2009 to October 2015, the Veteran experienced limitations in all functional related tasks as a result of his service-connected back disability. Id. Functional impairments during that timeframe are further detailed as limitations in bending forward, sitting to standing, carrying heavy objects, and stair ambulation. The private PT also noted that the following symptoms have presented during the same timeframe: tenderness; muscle spasm; sensory loss; muscle atrophy; muscle weakness; abnormal gait; swelling; crepitus; and trigger points. Id. This treatment provider opined that the Veteran would have only been able to sit, stand, or walk for up to one hour during an eight-hour workday. Moreover, it was opined that it would have been medically recommended that the Veteran not sit, stand, or walk continuously in a work setting. However, this opinion is stated in light of the additional symptoms of pelvic instability, poor balance, poor endurance, and loss of sensation. It is unclear if those symptoms are stated in relation to the spinal condition itself or as a result of the secondary service-connected disabilities of bilateral lower extremity radiculopathy. Although the October 2023 private medical record does not provide an analysis of the severity of the disability stated in terms of ROM testing, an additional private report, dated October 15, 2015 (associated with the claims file in August 2016), reflects a finding that forward flexion was limited to 30 degrees or less. See October 2015, Private Lumbar Spine Impairment Questionnaire. This report was provided by the Veteran's surgeon who performed diskectomy surgeries on the Veteran in March and June of 2003. Id.; see also 2003, Private Medical Records (pre-operative and surgical reports). The Veteran's surgeon expressed that the Veteran was experiencing chronic pain in the lumbar spine. It was also noted that the Veteran experienced difficulty walking, sitting, sleeping, and dressing due to his lumbar spine condition. Although there was no finding of ankylosis, the examiner reported muscle weakness, tenderness, muscle spasm, sensory loss, abnormal gait, reflex changes, and being easily fatigued. The examiner noted that in the preceding 12 months, the Veteran had been prescribed bed rest for a period of 6 weeks or more. Radiculopathy of the right and left lower extremities was indicated, with moderate symptoms found on the right side, and severe symptoms with marked muscular atrophy found on the right. Notably, the October 2015 private treatment record also indicates that the chronic weakness experienced by the Veteran due to his spine disability had gone unchanged for a period of 10 years. The Board finds that although there are additional private opinions and reports of record, they present details and descriptions of the later presentation of the severity of the Veteran's disabilities, rather than addressing the degree of severity and functional limitations presented prior to October 2015. In October 2015, the Veteran submitted a VA Form 21-8940. In the portion of the form requesting employment information for the last five years worked, the Veteran wrote that had worked in sales for a local market from 1988 to 2004. See October 2015, VA Form 21-8940. He also indicated that his highest income in his "sales" position was approximately $95,000/ year in 2003. Id. In the education section, the Veteran marked that he completed 4 years of college. In response to the question concerning "any other education and training," he marked "no." Id. A similarly completed form was submitted in May 2017, this time, indicating that the Veteran worked in sales from 1998 to 2005 for a local market. His highest gross earnings were again reported as being from "sales," with $100,000 earned in 1980. See May 2017, VA Form 21-8940. During the Veteran's hearing before the Board in October 2021, the Veteran again reiterated that he had worked in sales, explaining that he worked for a woman at a flea market. See October 2021, Hearing Transcript. Curiously, throughout the pendency of the claim for TDIU, the Veteran has failed to mention that he was a lawyer. Despite this omission on the Veteran's behalf, his medical records, and historic VA records, confirm as much. See 2009, VA Treatment Records; May 1974, Education Record (Bar Review enrollment). Indeed, in a September 2009 audiology treatment note, the Veteran reported his career as a lawyer. He again confirmed this reporting to treatment providers in April 2015, conveying that after active service, he became a lawyer and completed sedentary work. See 2015, VA Treatment Records. Many private treatment records, including those from 2003, the time of his back surgery, depict the Veteran as having "retired" from his career. Moreover, a May 1974 enrollment agreement reflects information concerning the Veteran's Bar Review program of study. While some may consider lawyering as "sales," the Board finds that the disparity in reporting presents an unnecessary lack of candor. Nevertheless, given the additional evidence of record, such discrepancy is not dispositive of the issue at hand, but certainly weighs against the claim. A career as a lawyer, even as confessed by the Veteran to treatment providers, presents the opportunity for sedentary employment as well as specialized training, skills, and expertise to complete such sedentary tasks. The Board has also considered the additional evidence of record which weighs against the claim. In March 2011, the Veteran was physically capable of partaking in activities at an outdoor shooting range. See March 2011, VA Treatment Record. A private treatment record from April 2011 demonstrates that the Veteran reported a pain level of 1/10, with lower extremity strength of 5/5, and no observed or reported negative affect in ambulation or strength. Furthermore, during a February 2014 physical examination of the Veteran, there was no limitation in range of motion of the spine. See February 2014, VA Treatment Record. Approximately one year later, the Veteran denied pain, again demonstrated no limitation in range of motion of the spine, and reported that he followed a regular exercise program. See February 2015, VA Treatment Record. In review of the foregoing, the Board finds that although the Veteran's reports of severity, and the ongoing documented medical findings thereof, vary quite drastically, the evidence is in approximate balance as to the collective functional impact of the Veteran's service-connected disabilities prior to October 2015. Accordingly, in resolving reasonable doubt in favor of the Veteran, the Board finds that the service-connected disabilities rendered him unemployable or unable to secure and follow a substantially gainful occupation during the period on appeal prior to October 3, 2015. Therefore, entitlement to a TDIU on an extraschedular basis, prior to October 3, 2015, is granted. 38 U.S.C. § 5107(b) (2018); Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc). Kristin Haddock Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Sutherell, Erienne 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.