Citation Nr: 18150462 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 11-09 708 DATE: November 15, 2018 ORDER A total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for an award of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1988 to July 1992. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2012 rating decision. The Veteran testified at a February 2015 Board hearing. The Board last considered this matter in April 2017. Entitlement to a total disability rating based on individual unemployability (TDIU). The Veteran has asserted that he cannot work due to his service-connected left leg post phlebitic syndrome, with associated scars. See substantive appeals from April 2011 and July 2013; February 2015 Board hearing transcript. A total disability rating may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran raised the issue of a TDIU via an April 2011 substantive appeal. Since then, the Veteran’s combined rating has varied. Prior to November 22, 2011, his combined rating was 40 percent. From November 22, 2011, and prior to May 20, 2016, it was 50 percent. Since May 20, 2016, it has been 100 percent. As such, entitlement to a TDIU is not for consideration from May 20, 2016, forward. The Board will next consider whether a TDIU is warranted prior to May 20, 2016. Prior to May 20, 2016, the Veteran does not meet the schedular percentage threshold for a TDIU under § 4.16(a). Nevertheless, it is VA’s established policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Accordingly, the Board, in April 2017, remanded the Veteran’s TDIU claim for referral to the Director, Compensation Service, for consideration of whether a TDIU was warranted on an extraschedular basis prior to May 20, 2016 per 38 C.F.R. § 4.16(b). In April 2018, the Director, Compensation Service, concluded that the evidence did not establish entitlement to a TDIU prior to May 20, 2016. The Director indicated that while available medical evidence does show treatment for the Veteran’s service-connected disabilities, it does not show that any of the service-connected conditions was severe enough to prevent employment during the relevant period. The Board is not bound by the Director’s decision. Indeed, in Wages v. Shinseki, the Court held that a decision from the Director of Compensation Service “is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence . . . It is simply a decision that is adopted by the [regional office] and reviewed de novo by the Board.” 27 Vet. App. 233, 239 (2015). Consequently, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the Veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19 (2014). In making its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The Veteran has stated that he last worked in 2009 and that his decision to stop working was mainly based on his left leg disability. See February 2015 Board hearing transcript at 15-16. However, in his January 2018 formal TDIU claim, he indicated that he last worked in March 25, 2008, and that he became too disabled to work on September 1, 2010. A July 2016 VA social and industrial survey, obtained pursuant to the August 2015 Board remand, reflects that the Veteran has a high school education. He worked for the U.S. Postal Service from 1995 to 2001, when he was terminated due to his inability to stand on his legs for long periods of time. He then worked as a child care worker at a children’s home for 12 years, until 2009, when he was diagnosed with congestive heart failure. Since then, he has received disability benefits from the Social Security Administration (SSA). At his Board hearing, the Veteran stated that SSA benefits are based on his heart disability. VA examinations from February 2012 and May 2016, as well as the July 2016 VA social and industrial survey reflect that the Veteran’s service-connected disabilities impact his ability to work, to include sedentary jobs. The February 2012 VA examination shows a finding of functional impact in the form of decreased tolerance and ability to stand or walk for prolonged amounts. Thereafter, the May 2016 VA examination addressed the question of whether the Veteran’s service-connected disabilities preclude substantially gainful employment, to include sedentary work. The examiner indicated that the Veteran had extensive debilitating medical problems which preclude him from performing sedentary employment. The examiner noted that the Veteran had a limited ability to lift up to 10 pounds, could not stand or walk for two hours per day, required regular use of a cane, was not able to sit for prolonged period of time without frequent breaks to stand up and change position, needed to alternate sitting and standing throughout the day, needed to lay down throughout the day and elevate feet, could not use arms or hands without limitations due to exertional weakness, could not bend from the waist, and could not walk on uneven surfaces. The July 2016 VA social and industrial survey indicates that the Veteran’s service-connected disabilities impacted the Veteran’s decision to be placed on disability. In contrast, a January 2018 VA examination shows a finding that the Veteran’s vascular condition does not impact his ability to work. No rationale was provided. The Board finds that the probative value of the 2018 VA examination report is outweighed by the more thorough and favorable medical evidence referenced in the paragraph above. Having reviewed the record and weighing the evidence both in support of and against the claim, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s service-connected disabilities combine to render him unemployable. The preponderance of the evidence establishes that the Veteran’s service-connected disabilities impact his ability to work and that such impact is sufficient to render him unemployable for VA purposes. The Board is particularly persuaded by the May 2016 VA examination report, which specifically addressed the Veteran’s functional impairment regarding sedentary employment. The Board is also persuaded by the July 2016 VA social and industrial survey, indicating that the service-connected disabilities were a factor in the Veteran’s decision to be placed on disability. As such, the Board finds the evidence to be in equipoise with respect to whether the service-connected disabilities at issue preclude him from obtaining and retaining substantially gainful employment. When reasonable doubt is resolved in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities are as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Therefore, entitlement to a TDIU is warranted. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. López, Associate Counsel