Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted on and after February 5, 2016, subject to the laws and regulations governing the…

Citation Nr: 26001441 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 18-38 493A DATE: January 30, 2026 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted on and after February 5, 2016, subject to the laws and regulations governing the payment of monetary benefits. On and after June 15, 2018, special monthly compensation under the provisions of 38 U.S.C. § 1114(s) is granted. REMANDED Entitlement to disability ratings for lumbar degenerative disk disease with herniated disks and stenosis status post hemilaminectomy, microdiscectomy, and fusion in excess of 10 percent from February 5, 2016 to April 12, 2022, in excess of 20 percent from February 13, 2022 to March 14, 2023, and in excess of 40 percent on and after March 15, 2023, is remanded. FINDINGS OF FACT 1. From February 5, 2016 to June 14, 2018, the evidence indicates that the nature and severity of his service-connected disabilities prevented him from performing gainful employment for which his education and occupational experience would have otherwise qualified him. 2. On and after June 15, 2018, the evidence indicates that the nature and severity of the Veteran's service-connected psychiatric disability prevented him from performing gainful employment for which his education and occupational experience would have otherwise qualified him. CONCLUSIONS OF LAW 1. With resolution of reasonable doubt in the Veteran's favor, the criteria for the award of a TDIU were met on and after February 5, 2016. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. 2. With resolution of reasonable doubt in the Veteran's favor, the criteria for the award of special monthly compensation under the provisions of 38 U.S.C. § 1114(s) are met beginning June 15, 2018. 38 U.S.C. § 1114(s), 1155, 5107; 38 C.F.R. §§ 3.102, 3.350. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Navy from August 1979 to August 1999. The Veteran testified before the undersigned Veterans Law Judge during a November 2021 hearing and a transcript is of record. These matters are on appeal from a March 2016 rating decision. In a March 2022 decision, the Board remanded the claims to attempt to obtain additional records and to afford the Veteran an additional VA examination. The Agency of Original Jurisdiction (AOJ) has done so. In a February 2023 decision, the Board remanded the claims again to afford the Veteran an additional VA medical opinion. The AOJ has done so. In a February 2024 decision, the Board remanded the claims a third time to afford the Veteran an additional VA examination. Because the Board is granting the TDIU claim throughout the period on appeal, any question as to the sufficiency of the AOJ's compliance with its remand instructions with regard to that claim is moot. The Board will address the AOJ's compliance with regard to the low back disability claim below. 1. TDIU The Veteran contends that his service-connected disabilities render him unemployable. The Veteran reports that he worked as a cast operator at an aluminum company until 2010 and has not worked since that date. In a September 2015 statement, his former employer indicated that he had not worked for them since 2009. Because the issue of entitlement to a TDIU was raised in connection with the Veteran's appeal for an increased rating for his service-connected low back disability, the Board will consider entitlement to a TDIU for the period on appeal for the low back claim, which is on and after February 5, 2016. See Rice v. Shinseki, 22 Vet. App. 447 (2009). VA will grant a total disability rating when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. The term "substantially gainful occupation" is not defined in the rating schedule. Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one. 31 Vet. App. 58 (2019). In assessing the Veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the Veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue. Id. From February 6, 2016 to June 14, 2018, his combined disability rating for his service-connected disabilities is 90 percent: his total left knee replacement is rated 30 percent disabling, his residuals of total right knee replacement are rated 30 percent disabling, his bilateral pes planus is rated 30 percent disabling, his radiculopathy of the left lower extremity is rated 20 percent disabling, his radiculopathy of the right lower extremity is rated 20 percent disabling, his lumbar degenerative disk disease with herniated disks and stenosis status post hemilaminectomy, microdiscectomy, fusion is rated 10 percent disabling, his hypertension is rated 10 percent disabling, his residual painful scar of the right knee is rated 10 percent disabling, and his chip fracture of the right fifth finger, scars status post left knee arthroscopy, left foot hammer toe of the second toe, onychomycosis of the left second toe nail, and residual surgical scars associated with total left knee replacement have noncompensable ratings. Effective June 15, 2018, service connection for the Veteran's unspecified depressive disorder as granted with an initial 50 percent rating, and his combined disability rating increased to 100 percent. A veteran may be awarded special monthly compensation under?38?U.S.C. §?1114?(s) based upon a finding that a single disability supports a 100 percent rating (including a TDIU rating) and other service-connected disabilities are separately ratable at 60 percent or more. See Bradley v. Peake,?22?Vet. App.?280?(2008). He has been granted special monthly compensation on this basis from November 18, 2019 to June 30, 2020 based on a temporary schedular 100 percent rating for his low back disability but not during the remainder of the period on appeal. The criteria for consideration of a TDIU are therefore met on and after June 15, 2018 (with the exception of the period of the temporary increase) but the Board may only consider a TDIU based on a single disability for that period. In his April 2015 claim for a TDIU, the Veteran reported that he had no post-secondary education. In a March 2011 decision, the Social Security Administration (SSA) found that the Veteran was unemployable on and after October 12, 2010 due to osteoarthrosis and back disorders. SSA determinations, while relevant, are not binding upon the Board. Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Although the decision did not specify the location of his osteoarthritis, because his service-connected left and right knee disabilities were rated as arthritis prior to his total knee replacements, the Board finds that this likely refers to his knee disabilities. The Veteran was afforded VA examinations for back and foot conditions in February 2016. In both of these examinations, the clinician found that the Veteran was unable to work due to his "back and knee issues." The Veteran was afforded a VA examination for mental disorders in September 2018. The clinician listed his symptoms for rating purposes as including difficulty in adapting to stressful circumstances, including work or a worklike setting. SSA found the Veteran unemployable due to his knee and back disabilities, which are service-connected, and the February 2016 VA examiner agreed that these disabilities combined to render him unemployable. The most persuasive evidence therefore weighs in favor of finding that the Veteran's service-connected knee and low back disabilities rendered him unemployable under the applicable regulations from February 5, 2016 to June 14, 2018. The September 2018 VA examiner found that the Veteran's service-connected psychiatric disability would cause difficulty in adapting to work or a worklike setting. The most persuasive evidence therefore weighs in favor of finding that the Veteran's service-connected psychiatric disability, by itself, has rendered him unemployable under the applicable regulations since June 15, 2018. As reasonable doubt must be resolved in favor of the Veteran, entitlement to a TDIU is warranted on and after February 5, 2016, which is the entire period on appeal. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. 2. Special Monthly Compensation Beginning June 15, 2018, the Veteran is unemployable solely due to his service-connected psychiatric disorder and the remainder of his service-connected disabilities are ratable at 60 percent or more. Therefore, the criteria for special monthly compensation under the provisions of 38 U.S.C. § 1114(s) are met beginning that date. REASONS FOR REMAND 1. Entitlement to disability ratings for lumbar degenerative disk disease with herniated disks and stenosis status post hemilaminectomy, microdiscectomy, and fusion in excess of 10 percent from February 5, 2016 to April 12, 2022, in excess of 20 percent from February 13, 2022 to March 14, 2023, and in excess of 40 percent on and after March 15, 2023, is remanded. VA examiners in June 2018, April 2022, March 2023, and March 2024 noted that the Veteran takes medication to treat the symptoms of his service-connected low back disability. The April 2022 examiner noted that the Veteran's pain was "managed by" his medications, which implies that they have at least some effect. The U. S. Court of Appeals for Veterans Claims (Court) has held that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). The Board is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use." Ingram v. Collins, 38 Vet. App. 130 (2025). The Veteran reports that he has taken medication during the period on appeal and that it has had beneficial effects. His low back disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. That Diagnostic Code does not specifically contemplate medication use. The Board is therefore required to discount those effects. However, such a finding would require the Board to make an independent medical determination, which it is not permitted to do. Colvin v. Derwinski, 1 Vet. App. 171 (1991). The June 2018, April 2022, March 2023, and March 2024 VA examinations did not discount beneficial medication effects. Although the Board regrets the additional delay in a case that has already been pending for nearly a decade and has already been remanded three times, in order to comply with the Court's requirements, a remand for an additional medical opinion is necessary. The Board emphasizes that it is not determining whether or not the Veteran's lay statements, including regarding the nature and severity of his symptoms, are credible at this time, as the additional development set forth in the directives below could impact that determination. Although the Board is requesting medical opinions regarding the lay contentions, this is for thoroughness and not based on a finding that the contentions are credible. The matters are REMANDED for the following action: 1. Arrange for an addendum opinion by a VA clinician who has not previously examined the Veteran for the purpose of determining the severity of his service-connected low back disability. The entire claims file and a copy of this remand must be made available to the clinician for review. A new examination is only required if deemed necessary by the clinician. The clinician is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of any symptoms his service-connected low back disability would have without the benefit of medication during the period on appeal. The clinician is advised that the period on appeal begins on February 5, 2016. The clinician must estimate what the full range of motion would be without the use of medications. The estimates should include both active and passive motion, in weight-bearing and non weight-bearing. If the clinician is unable to provide these estimates, he or she should clearly explain the basis for this decision. If the Veteran has flare-up episodes, the clinician must estimate any additional functional loss during flare-ups without the use of medication. If an estimation is not possible without resorting to speculation based on all the evidence of record, including the Veteran's lay information, the clinician must explain why he or she cannot do so. The clinician is advised that a statement that the examination did not take place during a symptomatic episode when the Veteran was without the benefit of medication is not a sufficient rationale for inability to provide an opinion. Although an independent review of the claims file is required, the Board calls the clinician's attention to the June 2018, April 2022, March 2023, and March 2024 VA examiners' notes that the Veteran takes medication to treat his symptoms, including the April 2022 examiner's note that the Veteran's pain was "managed by" his medications. 2. Ensure that the directives specified in this remand have been implemented.? If they have not, appropriate corrective action must be undertaken before readjudication. ?Stegall v. West, 11?Vet. App.?268 (1998).?? 3. Then, readjudicate the claim. If the decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Frank, 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.