Case 21018015

Summary

The Veteran, who served in the United States Marine Corps from May 1954 to May 1958, appeals the denial of entitlement to a total disability rating based on individual unemployability (TDIU) due to his service-connected lower back disability. The claim for TDIU was filed in conjunction with an increased rating claim for his lower back, with the Veteran asserting he stopped working due to his condition. The Board reviewed the Veteran's service records, VA examinations from 2006, 2008, 2009, 2011, 2013, and 2019, and a TDIU Vocational Assessment from F. Z., a Certified Rehabilitation Counselor, dated October 2019. The VA examinations provided mixed opinions, with some indicating limitations but not precluding substantially gainful employment, while the most recent 2019 exam noted significant limitations affecting occupational functioning. The vocational assessment by F. Z. concluded it was at least as likely as not that the Veteran's lower back disability rendered him unable to secure or follow substantially gainful employment since 1994, citing limitations in sitting, standing, ambulating, lifting, and general work persistence. The Board also considered an opinion from the Director of Compensation Service, which found the preponderance of evidence against TDIU based on sedentary employment limitations. However, the Board found the evidence regarding TDIU to be in relative equipoise, granting the extraschedular TDIU effective August 21, 2009, due to the conflicting opinions and the Veteran's specific vocational limitations.

Rationale

Evidence regarding TDIU was in relative equipoise.; Conflicting opinions from VA examinations and private vocational assessment.; Grant based on inability to secure or follow substantially gainful employment due to service-connected lower back disability.

Full Decision Text

Citation Nr: 21018015
Decision Date: 03/29/21	Archive Date: 03/29/21

DOCKET NO. 12-02 353
DATE: March 29, 2021

ORDER

Entitlement to a total disability rating based on individual unemployability (TDIU) due to a service-connected lower back disability, on an extraschedular basis, from August 21, 2009 is granted.

FINDING OF FACT

From August 21, 2009, the Veteran has been unable to secure and follow a substantially gainful occupation by reason of his service-connected lower back disability.

CONCLUSION OF LAW

The criteria for a TDIU based on the Veteran’s service-connected lower back disability on an extraschedular basis for the period from August 21, 2009, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Marine Corps from May 1954 to May 1958.

These matters come before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO).

Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis from May 19, 2006

A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16.

Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more.

The Veteran’s claim for a TDIU arose in conjunction with his claim for an increased rating for his lower back disability, filed August 21, 2009. The Veteran contends that he stopped working and is unable to secure or follow a substantially gainful occupation due to his service-connected lower back disability.

Prior to March 14, 2017, the Veteran did not have a single service-connected disability rated at 60 percent or more, or more than one service-connected disability resulting in a combined rating of at least 70 percent. Thus, the schedular criteria for a TDIU was not met for the period prior to March 14, 2017.

From March 14, 2017, the Veteran’s total disability rating is 100 percent disabling; with a total 100 percent rating assigned for chronic lymphocytic leukemia. Accordingly, the Veteran was awarded special monthly compensation (SMC) due to chronic lymphocytic leukemia, effective March 13, 2019. The fact that the Veteran is currently in receipt of a 100 percent schedular rating for his lymphocytic leukemia does not moot any claim for a separate TDIU based on his other service-connected disabilities. In this case, the Veteran and his representative contend that the Veteran is entitled to a TDIU based on his service-connected lower back disability.

Entitlement to SMC under 38 U.S.C. § 1114(s) requires that the Veteran be in receipt of a total disability rating with additional service-connected disability ratable at 60 percent, separate and distinct from the total disability rating. For the period from March 14, 2017 to March 13, 2019, the Veteran’s other service-connected disabilities do not meet the schedular criteria for TDIU, even when considering whether there is one disability resulting from a common etiology.  Indeed, the Veteran’s service-connected lumbar spine disability at 20 percent, left hip strain at 10 percent, right hip arthritis at 10 percent, and right lower extremity radiculopathy at 10 percent would not result in one 60 percent disability pursuant to the combined ratings table and provisions in §4.16(a) and 4.25. As such, the schedular criteria for TDIU is also not met for the period from March 14, 2017 to March 13, 2019.

Here, the question
, the Veteran’s other service-connected disabilities do not meet the schedular criteria for TDIU, even when considering whether there is one disability resulting from a common etiology.  Indeed, the Veteran’s service-connected lumbar spine disability at 20 percent, left hip strain at 10 percent, right hip arthritis at 10 percent, and right lower extremity radiculopathy at 10 percent would not result in one 60 percent disability pursuant to the combined ratings table and provisions in §4.16(a) and 4.25. As such, the schedular criteria for TDIU is also not met for the period from March 14, 2017 to March 13, 2019.

Here, the question for the Board is whether the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, other than chronic lymphocytic leukemia, for the period from August 19, 2009 to March 13, 2019.

If a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The 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. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Thus, the Board must evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19 (2017); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual's particular circumstances. Rice, 22 Vet. App. at 452.

A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. When the evidence is in "relative equipoise, the law dictates that the Veteran prevails." Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Board is required to submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. 38 C.F.R. § 4.16(b). As the issue of extraschedular consideration was adjudicated in the first instance by the Director in March 2020, the Board can review this matter de novo. Floyd v. Brown, 9 Vet. App. 94 (1996).

In this case, the grant herein is based on the Veteran being found to be unable to secure and follow a substantially gainful occupation due solely to his service-connected lower back disability. Thus, for the sake of brevity, the discussion below will be limited to the lower back disability only.

The Veteran Submitted VA Forms 21-8940 Application for Increased Compensation Based on Unemployability in August 2006 and May 2018. The Veteran indicated that he last worked full-time as a Vocational Rehabilitation Counselor in 1994. He also indicated that his highest level of education was 4 years of college. The Veteran also reported that he worked part-time transporting cars following his early retirement in 1994. The Board will now turn to the medical evidence of record.

The Veteran was afforded VA examinations in August 2006 and January 2008. He reported that prior to retiring, his employer made accommodations for his back condition such as buying him a special chair; however, he remained unable to perform his job duties.

At the time of a
 21-8940 Application for Increased Compensation Based on Unemployability in August 2006 and May 2018. The Veteran indicated that he last worked full-time as a Vocational Rehabilitation Counselor in 1994. He also indicated that his highest level of education was 4 years of college. The Veteran also reported that he worked part-time transporting cars following his early retirement in 1994. The Board will now turn to the medical evidence of record.

The Veteran was afforded VA examinations in August 2006 and January 2008. He reported that prior to retiring, his employer made accommodations for his back condition such as buying him a special chair; however, he remained unable to perform his job duties.

At the time of a September 2009 examination, the Veteran reported flare-ups of the lower back every 1-2 months that lasted 3 to 7 days.

During a November 2011 examination, the examiner indicated that the Veteran’s lower back condition did not affect his ability to work.

At the time of an October 2013 examination, the examiner indicated that the Veteran would likely have difficulty with occupational activity requiring repetitive lifting of objects from the floor, but that he could sustain light to moderate activities.

During a June 2019 examination, the Veteran’s lumbar spine disability was noted to affect the Veteran’s occupational functioning, causing pain with walking, standing, and sitting more than 5 minutes without breaks or assistance. The Veteran was also noted to need a wheelchair if walking or standing more than 5 minutes, he was unable to lift anything greater than 10lbs, bend over, squat, kneel, overhead reach, or climb a ladder. 

In October 2019, the Veteran submitted a TDIU Vocational Assessment from F. Z., a Certified Rehabilitation Counselor. F. Z. indicated that he evaluated the Veteran’s ability to secure and follow substantially gainful employment solely on his service-connected lower back disability. F. Z. noted a review of the Veteran’s claims file. The Veteran reported chronic lumbar pain with any exertional activity since July 1994. He was noted to require the use of a cane due to instability and weakness. The Veteran also described flare-ups that lasted 1-2 days, that required the use of a rolling walker. The Veteran reported spending the majority of his day seated; with the need to alternate between standing and sitting every 15-20 minutes. He also described difficulty sleeping due to pain. F. Z. noted that the Veteran’s lower back disability caused limitations with reaching, lifting/carrying, sitting, standing, walking, bending, twisting, kneeling, squatting, stooping, climbing, and balancing.

The Veteran was noted to have obtained a Bachelor of Science in Education, with his last full-time employment as a Rehabilitation Counselor from 1967 until 1994. He reported resigning from his position due to inability to perform work-related tasks as a result of his service-connected lower back disability. The Veteran also reported working part-time as a car transporter from 1994-1996, but that the job duties exacerbated his lower back pain.

Ultimately, F. Z. concluded that at it was at least as likely as not that the Veteran’s service-connected lower back disability rendered him unable to secure or follow substantially gainful employment, to include sedentary unskilled work, since at least 1994. As rationale, F. Z. noted that that the Veteran was unable to sit, stand, or ambulate for prolonged periods; making his physical limitations inconsistent with even the demands of sedentary work. F. Z. indicated that the Veteran’s inability to regularly attend to work tasks and complete a normal work schedule due to back pain, would not be tolerated by any employer at any exertional or skill level. Finally, F. Z. noted that notwithstanding the Veteran’s acquired skills through his past work, his physical limitations and inability to maintain pace and persistence would render him unemployable.

The Board also notes that an opinion from the Director of Compensation Service addressing whether a TDIU is warranted on an extraschedular basis was associated with the claims file in March 2020. The Director concluded that excluding the disability of chronic lymphocytic leukemia, the preponderance of the medical evidence of record does not establish that the Veteran would be unable to pursue any type of gainful employment, of both a physical and sedentary nature due solely to the remaining service connected conditions. The Director noted that the Veteran’s most significant service-connected disability was his lower back condition, and noted that the evidence does indicate that the Veteran would be unable to pursue gainful physical employment, due to various limitations. The Director added that no such limitations regarding sedentary employment were shown.

Here, the Board finds the positive and negative evidence regarding the Veteran's TDIU claim is in relative equipoise. In this case, the March
0. The Director concluded that excluding the disability of chronic lymphocytic leukemia, the preponderance of the medical evidence of record does not establish that the Veteran would be unable to pursue any type of gainful employment, of both a physical and sedentary nature due solely to the remaining service connected conditions. The Director noted that the Veteran’s most significant service-connected disability was his lower back condition, and noted that the evidence does indicate that the Veteran would be unable to pursue gainful physical employment, due to various limitations. The Director added that no such limitations regarding sedentary employment were shown.

Here, the Board finds the positive and negative evidence regarding the Veteran's TDIU claim is in relative equipoise. In this case, the March 2020 opinion from the Director concludes that the Veteran could perform sedentary employment without further analysis. However, this opinion is supported by the VA examinations of record, which did not find that the Veteran was unable to secure or follow substantially gainful employment. 

Adversely, the opinion rendered by F. Z. concludes that the Veteran would be unable to perform work-related tasks in any capacity; noting the Veteran’s inability to sit, stand, or ambulate for a prolonged period. Additionally, the opinion rendered by F. Z. takes into consideration the Veteran’s education level and work experience, and nonetheless concludes that his physical limitations and inability to maintain pace and persistence would render him unemployable at any exertional or skill level. 

The Board notes that the Compensation Service's decision is, at this point, nonbinding on the Board. The Board reviews the entirety of the Director's decision de novo, and is thus authorized to assign an extraschedular rating when appropriate. See Wages v. McDonald, 27 Vet. App. 233 (2015). The ultimate TDIU determination is the responsibility of a VA adjudicator and not a medical examiner. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Based on the evidence described above, the Board finds that the medical evidence of record is in relative equipoise. Entitlement to an extraschedular TDIU is, therefore, granted, effective August 21, 2009. 38 C.F.R. § 4.16(b). 

 

K. J. ALIBRANDO

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	A. Marsh II, 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.