Citation Nr: 19124591 Decision Date: 04/02/19 Archive Date: 04/02/19 DOCKET NO. 14-37 944 DATE: April 2, 2019 ORDER A total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is granted. FINDING OF FACT Resolving all doubt in the Veteran’s favor, his service-connected disabilities render him unable to obtain or maintain gainful employment consistent with his educational and occupational background. CONCLUSION OF LAW The criteria for assignment of a TDIU on an extraschedular basis have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.16(b) (2018). REASONS AND BASES FOR FINDING AND CONCLUSION Entitlement to TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Initially, the Board observes the Veteran is service-connected for a left Achilles tendon disability with residual scarring, tinnitus, and bilateral hearing loss, but does not meet the schedular criteria for the assignment of a TDIU at any point during the appeal period. See 38 C.F.R. § 4.16(a). In instances in which the Veteran is unemployable by reason of service-connected disabilities, but who fail to meet the schedular criteria, the case should be referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). However, following a determination by the Director, Compensation Service, the Board may then review the decision on a de novo basis. See generally Kuppamala v. McDonald, 27 Vet. App. 447 (2015). In the instant case, the AOJ referred the claim to the Director, Compensation Service, for extraschedular consideration in July 2018. Following a review of the evidence of record, the Director denied the assignment of an extraschedular TDIU. As such, this issue is now within the Board’s jurisdiction. Kuppamala, 27 Vet. App. 447. For reasons stated immediately below, the Board finds that the evidence of record is at least in equipoise in demonstrating that the Veteran’s service-connected disabilities render him unable to secure and follow a substantially gainful occupation. Historically, the Veteran has attended one year of college, and was employed in a number of occupations as a security official, weapons handler, and security assistant. In December 2011, he submitted an application for a security position with the Transportation Security Agency, but states he was denied employment due to the use of pain medication prescribed for his service-connected disability. The medical evidence of record includes a May 2015 VA examination in which the examiner determined that the Veteran’s service-connected hearing loss and tinnitus impact his ability to work. In addition, the Veteran has submitted private medical evidence, including medical opinions from Dr. Summerhays noting that due to his left Achilles tendon disability and residuals of past surgeries, the Veteran is unable to work. Based on such evidence, the AOJ recommended a TDIU be awarded on an extraschedular basis. See July 2018 Referral for Administrative Review. In denying an extraschedular TDIU, the Director, Compensation Service, relied in large part on notes in the claims folder indicating the Veteran has an employment background as an Over the Road Truck Driver. The Director discounted the private medical opinion, noting that Dr. Summerhays “ignores sedentary occupational activity as well as non-service connected disabilities effect on activity….” However, in a February 2019 statement, the Veteran strenuously objected to the finding of previous employment as a truck driver and stated that he has never held such an occupation. A review of the Veteran’s VA treatment records includes numerous notations that his girlfriend/wife is a truck driver, and he would accompany her on trips. While there are sporadic notations that the Veteran himself was also a truck driver, in light of his February 2019 statement, the Board concludes it is reasonable to believe these notations as to the Veteran’s own employment are erroneous. As such, the Board accepts the Veteran’s statement that he has never held employment as a truck driver as credible. Based on the opinion of Dr. Summerhays, as well as the entirety of the medical evidence of record, the Board finds that a TDIU is warranted in this case. Even though the Veteran does not meet the schedular criteria for TDIU at any point during the appeal period, and the competent and probative evidence is at least in equipoise as to whether his service-connected disabilities preclude him from performing the physical and mental acts required by any form of employment consistent with his education and previous work experience. In finding in favor of the Veteran, the Board has considered the negative determination by the Director, Compensation Service. However, as noted above, this decision was based, at least in part, on an erroneous determination that the Veteran previously held sedentary employment as a truck driver. “A Veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” Gilbert v. Derwinski, 1 Vet. App. 49 (1990). “Entitlement need not be established beyond a reasonable doubt, by clear and convincing evidence, or by a fair preponderance of the evidence. Under the benefit of the doubt doctrine established by Congress, when the evidence is in “relative equipoise, the law dictates that the Veteran prevails.” Id. As such, resolving all doubt in favor of the Veteran, the Board finds entitlement to a TDIU is warranted in the instant case. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Christopher Murray, Counsel