Citation Nr: 18151586 Decision Date: 11/20/18 Archive Date: 11/19/18 DOCKET NO. 15-37 680 DATE: November 20, 2018 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) on both a schedular and an extraschedular basis is granted. FINDING OF FACT The Veteran is unable to secure and maintain substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for a TDIU (on a schedular and extraschedular basis) have been met from June 26, 2014 forward. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Marine Corps from August 1987 to August 1991, including service in Southwest Asia. This claim was previously before the Board in November 2016, at which time it remanded the matter for further development. The Veteran currently has claims at various stages of development. Each of these claims has been noted by the Regional Office, and development is proceeding. Given that fact and the positive action taken by the Board in this decision, the Board declines jurisdiction over these other issues. 1. Entitlement to a TDIU is granted The Veteran contends that he is unable to work due to the symptoms associated with his service-connected disabilities. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestead v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Where the schedular rating is less than total, a total disability rating for compensation purposes may be assigned when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Since May 22, 2012 (the beginning of the appeal period in this case), the Veteran has been service-connected for: obstructive sleep apnea, rated at 50 percent from June 26, 2014 to May 1, 2016; posttraumatic stress disorder, rated at 30 percent prior to December 28, 2016 and at 50 percent thereafter; fibromyalgia, rated at 40 percent; and tinnitus, rated as 10 percent. His combined disability ratings are 60 percent prior to June 26, 2014; 80 percent from June 26, 2014 to April 30, 2016; 60 percent from May 1, 2016 to December 27, 2016; and 70 percent from December 28, 2016 to the present. Given those facts, the Veteran meets the schedular criteria for two portions of the appellate period, but does not meet the criteria for two others – this fact is explored in greater detail below. Regardless, of the Veteran’s schedular ratings, the evidence nevertheless indicates that he is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. Following his separation from service, the Veteran worked as a carpenter and did some contracting work. He also worked at a septic system business for a period of time. However, the Veteran has not worked in many years. The earliest noted period of unemployment was in 2009. This period was noted in a VA Psychiatric examination in October 2012 when the Veteran stated he had not worked in three years. Most recently, the Veteran was noted to be unemployed due to chronic pain during a VA Examination from December 2016. A private physician noted, in a Capacity Evaluation report in September 2018, that the Veteran last worked in 2013 at a family owned hardware store. Both VA and private medical evidence further show that the Veteran’s service-connected disabilities would significantly impair his ability to secure or follow a substantially gainful occupation. VA evidence reflects that the Veteran’s fibromyalgia would result in widespread joint pain and numerous other symptoms that would impact his ability to work. Private psychiatric reports note that, because of his service-connected PTSD, the Veteran would not be able to sustain the stress from a competitive work environment. In light of this evidence, the Board concludes that the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. Ordinarily, for the periods noted above where the Veteran does not meet the schedular criteria for a TDIU, VA is required to submit the case to the Director, Compensation Service for an extraschedular opinion. In this case, the Board declines to do so and will simply grant the claim. While it was initially understood that the Board could not award an extraschedular TDIU rating in the first instance, this prohibition has been implicitly overruled by later case law. Bowling v. Principi, 15 Vet. App. 1, 10 (2001); but see e.g., Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The more recent case law noted that it simply defies logic and the intent of the law that the Board is able to review de novo the determinations of the Director of Compensation, yet must send it to him in the first instance, even when the Board finds that the evidence of record already shows the Veteran is incapable of obtaining or maintaining in substantially gainful employment. Moreover, in a recent precedential decision, one of the Judges of the Court, in a concurring opinion, disagreed with the holding in Bowling and, cited Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992), in determining that the Board had the authority to award extraschedular TDIU in the first instance. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015) (Kasold, J., concurring). The Wages majority separately noted that, “[i]n sum, the Secretary’s contention that § 4.16(b) vests an extraschedular TDIU award solely within the nonreviewable discretion of the Director conflicts with the statutory mandate that the Board provide the final decisions on section 511(a) benefits determinations. Accordingly, this contention is rejected.” Id. at 238. (emphasis added). Finally, the majority, in a footnote, observed the current absurdity inherent in the § 4.16(b) process, noting that “Although it is not clear how the Secretary’s approach of inserting the Director into the regulatory process while refusing to recognize the Director as the agency of original jurisdiction fits within the statutory scheme for adjudicating VA benefits claims, see, e.g., 38 U.S.C. § 7105 (providing for Board review of decisions by an agency of original jurisdiction), we need not further address this issue in the absence of a direct challenge to that process.”) Id. at 238 n.4 (emphasis added). Therefore, given the reasoning outlined above, the Board will not make the Veteran wait any longer for unnecessary processing by VA, when the evidence already establishes entitlement to the benefit sought. See Delisio v. Shinseki, 25 Vet. App. 45, 63 (2011) (Lance, J., concurring) (“There is an unfortunate—and not entirely unfounded—belief that veterans law is becoming too complex for the thousands of regional office adjudicators that must apply the rules on the front lines in over a million cases per year.”). Resolving reasonable doubt in favor of the Veteran, the Veteran’s service-connected disabilities have precluded him from obtaining and maintaining substantially gainful employment over the course of the entire appeal period. A TDIU on both a schedular and extraschedular basis is therefore granted. Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. N. P. Jochem, Associate Counsel