Citation Nr: 1807128 Decision Date: 02/02/18 Archive Date: 02/14/18 DOCKET NO. 09-36 638 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU) prior to January 5, 2016. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Parrish, Associate Counsel INTRODUCTION The Veteran served on active duty from January 1987 to April 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York. In January 2013, the Board determined that the claim for a TDIU was inferred with the claim for an increased disability rating based on evidence that the Veteran was unemployed. The claim was remanded for additional development, to include obtaining examinations. This was accomplished in June 2016. In a June 2016 rating decision, the RO awarded a TDIU effective April 17, 2016. In an October 2017 rating decision, the RO corrected the effective date of the award of a TDIU to January 5, 2016. However, as that award did not represent a total grant of the benefit sought, the claim for a TDIU prior to January 5, 2016, remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). In November 2017, the Director of Compensation and Pension Service issued an Administrative Decision denying entitlement to an extraschedular rating for a TDIU under 38 C.F.R. § 4.16(b). This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017). 38 U.S.C. § 7107(a)(2) (2012). FINDING OF FACT The medical and other evidence of record reasonably demonstrates that the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation for the period prior to January 5, 2016. CONCLUSION OF LAW The criteria for entitlement to a TDIU for the period prior to January 5, 2016, on an extraschedular basis, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b) (2017). REASONS AND BASES FOR FINDING AND CONCLUSION TDIU It is the established policy of VA 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. 38 C.F.R. § 4.16. A finding of total disability is appropriate when there is present any impairment of mind or body which is sufficient to make it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340(a)(1), 4.15 (2017). A TDIU 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided 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. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19 (2017); Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993); 38 C.F.R. §§ 4.1, 4.15, 4.16(a) (2017). When there is an approximate balance of positive and negative evidence as to any issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (2012). In the instant matter, service connection has been established for: persistent depressive disorder with alcohol abuse disorder, rated 10 percent disabling, for the period prior to January 5, 2016; residuals of a left ankle fracture, rated 20 percent disabling beginning November 13, 2008, and at 10 percent prior to November 13, 2008; left lower extremity radiculopathy, rated 10 percent disabling prior to January 5, 2016; degenerative arthritis of the spine, rated 20 percent disabling prior to January 5, 2016; and bilateral bunions of the great toes, rated 10 percent disabling for the period prior to January 5, 2016. His combined service-connected disability rating was less than 70 percent. 38 C.F.R. § 4.25 (2017). Therefore, he did not meet the percentage requirements of 38 C.F.R. § 4.16 (a) for the period prior to January 5, 2016. 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 consideration of the assignment of TDIU. 38 C.F.R. § 4.16 (b) (2017). Neither the RO nor the Board may assign TDIU pursuant to 38 C.F.R. § 4.16 (b) in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). In a November 2017 decision, the Director of Compensation Service cursorily determined that "since no service-connected disabilities are identified individually or collectively, as the sole reason for the Veteran's unemployability, TDIU is not warranted on an extra-schedular basis". The memorandum from the Director of Compensation Service provided little rationale as to the conclusion. Additionally, the Director provided no consideration for the Veteran's educational and occupational backgrounds. As the question of whether the Veteran is entitled to TDIU on an extraschedular basis has first been adjudicated by the Director of Compensation Service, the Board may now proceed to evaluate the merits of the appeal. See Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2009) (the Board has jurisdiction to review determinations of the Director regarding a Veteran's entitlement to an extraschedular rating). The Veteran attended high school before enrolling in active duty service. After service, he took on part-time roles (e.g., in the fast-food industry), and then began a full-time career position as a flight attendant in 1987. He continued working as a flight attendant until 2006. The Veteran attended college from 2008 to 2013, and he graduated with an undergraduate degree in elementary education. He worked as a student-teacher in 2013 and 2014. He asserted that he is licensed to teach. He also worked as a substitute teacher until approximately 2015. Therefore, the Veteran's education and job history qualify him for elementary education and in-flight service only. The Veteran stated that he retired from his career as a flight attendant in 2006 because of his left-ankle disability, his bunions, and his spinal degenerative arthritis. He explained that throughout his career in the airline, he continuously took sick and personal leave to rest his ankle and back. His job responsibilities - working for long hours on his feet at different altitudes and lifting heavy items - had been aggravating his disabilities. Due to the continuous pain, and on the recommendation of his private podiatrist, he left his airline position. Similarly, he indicated that he could no longer work as an elementary school teacher due to his back and foot issues. The Veteran has a significant history for alcohol dependence. He has sought treatment for his depressive disorder with alcohol abuse disorder, to include many hospital treatments. In fact, the record reflects his hospitalization more than twenty-five times due to alcohol withdrawal. He took leaves of absence during school due to his admissions for alcohol withdrawal. Thus, based on the foregoing, the Board finds that his service-connected disabilities have severely affected his ability to secure and retain substantially gainful employment in elementary education and in-flight service, which were his primary types of occupation since 1997. His bunions have made it necessary for him to retire from his position as a flight attendant. His left-ankle disability, his bunions, and his spinal degenerative arthritis have made it extremely difficult for the Veteran to sit, stand, or carry objects for reasonable periods. The evidence reflects that the Veteran's disabilities would have prevented him from sitting for long periods. Furthermore, the Veteran's persistent depressive disorder with alcohol abuse disorder has been causing occupational and social impairment in most aspects of his life. Indeed, it can be concluded that consuming large amounts of alcohol and at high frequencies would lead to occupational impairment in the Veteran's work in elementary education and in the airline industry. Affording the Veteran the benefit of all reasonable doubt, the Board is satisfied that the evidence establishes his service-connected disabilities were sufficiently severe for the period prior to January 5, 2016, to render him unable to maintain any form of substantially gainful employment consistent with his education and occupational background. Although the Veteran did not meet the threshold schedular criteria for entitlement to a TDIU for the period prior to January 5, 2016, the Board is satisfied that at least an equal balance of evidence establishes he was unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities throughout that time. ORDER Entitlement to TDIU, pursuant to 38 C.F.R. § 4.16(b), for the period prior to January 5, 2016, is granted, subject to the regulations governing the payment of monetary awards. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs