Citation Nr: 18154608 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 13-24 951A DATE: November 30, 2018 ORDER A total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities preclude gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1943 to November 1945. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2015, the Veteran, in Detroit, Michigan, testified before the undersigned at a videoconference hearing. A transcript of that hearing has been associated with the virtual file and reviewed. This case was previously before the Board in in May 2016 and February 2018, on which occasions it was remanded for further development. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). In a March 2017 administrative decision, the Director, Compensation Service (Director), denied TDIU on an extraschedular basis. The matter of TDIU on an extraschedular basis has been returned to the Board and will be considered on a de novo basis. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (finding that the VA Compensation Service Director’s initial determination as to an extraschedular evaluation is not evidence). The Board notes that VA has received four requests from the Veteran’s attorney representative since March 2018 requesting that VA expedite the appeal due to the Veteran’s advanced 94 years of age. However, in November 2018, VA received a request from the Veteran’s attorney representative that the Board wait an additional 90 days before issuing a decision in this matter to allow an opportunity to submit further evidence in support of the appeal. As the Board’s decision herein constitutes a full grant of the benefit sought, the Board declines to wait the full 90 days to issue a decision, as there is no prejudice to the Veteran, and the Veteran’s attorney representative has stressed the importance of a timely decision. Entitlement to TDIU. 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. Here, the Veteran is service-connected for a back disability (20 percent) and pulmonary tuberculosis (zero percent). The Veteran’s service-connected disabilities combine for 20 percent; accordingly, the schedular threshold requirements for TDIU are not met. See 38 C.F.R. § 4.16(a). As the issue of extraschedular consideration was adjudicated in the first instance by the Director of Compensation Service in March 2017, the Board is now free to review this matter de novo. Floyd v. Brown, 9 Vet. App. 94 (1996). 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. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). Based on a review of the record, the Board finds that the Veteran’s service-connected disabilities render him unable to secure and maintain substantially gainful employment. The record demonstrates that the Veteran had one year of college and that he last worked in 1974 as a supply technician. 01/24/2018, VA 21-8940. In November 2017, a private physician opined that the Veteran’s back disability precludes gainful employment. The physician stated that the Veteran’s back has compromised his ability to ambulate, ascend and descend stairs, and move in and out of house without assistance; the Veteran is housebound and incapable of performing his activities of daily living (ADLs) without assistance; and he has had incapacitating episodes due to the back with a duration of six or more weeks in the past 12 months. In support, the physician cited to the lay statements by the Veteran, who reported constant, severe back pain; that he cannot sit for more than one hour; and that he requires assistance to complete ADLs such as dressing and bathing. The Veteran is unable to tolerate prolonged sitting, standing, or walking; is unable to lift anything of significant weight; and cannot drive. Sitting for more than 10 minutes requires the Veteran to adjust his position multiple times. Pain is worsened by walking, sitting, standing, and laying down. The Veteran requires a walker to ambulate around the home, and a motorized scooter for longer distances. 01/25/2018, Medical-Non-Government. In April 2018, a VA examiner concurred with the November 2017 private opinion, and opined that it is at least as likely as not that limitations in ambulation and the need for assistance in ADLs are due to his service-connected back disability. The VA examiner also opined that the back disability impacts the Veteran’s ability to obtain and maintain substantially gainful physical employment. 04/26/2018, C&P Exam. In light of the above, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected back disability renders him unable to secure and maintain gainful employment. Specifically, the Board notes that the inability to sit or stand for prolonged periods of time, taken in conjunction with the Veteran’s educational background and occupational history, precludes both sedentary and physical labor. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.A. Gelber, Associate Counsel