Citation Nr: 20006783 Decision Date: 01/28/20 Archive Date: 03/05/20 DOCKET NO. 17-36 715 DATE: January 28, 2020 ORDER Entitlement to total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, on an extraschedular basis, is granted. FINDING OF FACT The probative evidence of record is at least in equipoise as to whether the Veteran's service-connected disabilities preclude him from securing or following gainful employment. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran has active service from April 1983 to February 1985. This matter is again before the Board of Veterans' Appeals (Board) from a November 2016 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans Law Judge at a video hearing in September 2018. In January 2019, the Board remanded this matter for referral to the Director, Compensation and Pension Services (Directory) for extraschedular consideration of a TDIU due to the Veteran’s service-connected disabilities. In October 2019, the Director determined that entitlement to extraschedular TDIU was not established (10/02/2019 Miscellaneous C&P Correspondence). With the Director's review complete, the Board finds there has been substantial compliance with the prior remand directives in accordance with Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board may now consider the Veteran’s entitlement to TDIU on an extraschedular basis. TDIU on an extraschedular basis. The Veteran claims that he has been unable to work since 2015 (11/4/2015 Correspondence, p. 2), and during his hearing he testified that he was limited to working six hour shifts at night because of his service-connected disabilities. The Veteran confirmed his unemployability is due to his service-connected sleep disability and sinus disability (9/28/2018 Hearing Transcript, pgs. 3 and 5). The Veteran has a combined disability rating of 40 percent effective June 2015. He is rated 30 percent for chronic sinusitis from and 10 percent for unspecified insomnia disorder with sleep impairment from June 2015 (11/19/2018 Rating Decision – Codesheet, p. 1). 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). Although the Veteran’s disability picture during the period on appeal does not meet the criteria set forth at 38 C.F.R. § 4.16 (a), a total disability rating may also be assigned on an extraschedular basis, pursuant to 38 C.F.R. § 4.16 (b). Section 4.16 (b) applies to Veterans who are unemployable by reason of service-connected disabilities but fail to meet the percentage standards set forth in section 4.16 (a). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Accordingly, this matter was referred to the Director of Compensation and Pension Services for consideration of entitlement to TDIU on an extraschedular basis. The Director denied extraschedular TDIU, citing the record does not demonstrate that the Veteran’s service-connected insomnia and sinusitis alone render the Veteran unable to maintain or obtain substantial and gainful employment. The Board disagrees. Further, in determining employability for VA purposes, consideration is to be given to the Veteran's level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. § § 3.341, 4.16(a), 4.19; see also 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, 363 (1993). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). 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 Veteran. 38 U.S.C. § 5107. The Board notes the Veteran is a high school graduate. His work experience is limited to his military service, driving a taxi, and working as a night security guard (7/7/2017 Veteran’s Application for Increased Compensation Based on Unemployability and 9/28/2018 Hearing Transcript, pgs. 2-3). The Veteran receives Social Security, for non-service-connected disorders of the back and affective/mood disorders, which are not considered in this analysis (11/27/2017 Medical Treatment Records -Furnished by SSA, p. 2). During his October 2017 VA examination pertaining to his unspecified insomnia disorder with sleep impairment, the Veteran indicated he had not worked in four years, that is approximately 2013. The October 2017 examiner summarized the Veteran’s level of occupational and social impairment as occupational and social impairment due to mild or transient symptoms, which decrease work efficiency and ability to perform occupational tasks during periods of significant stress. The examiner noted during the examination that the Veteran averages a couple of hours of sleep per night, takes naps during the day, rambled extensively, was tangential, and his responses were sometimes not relevant to the questions posed. Although the examiner indicated the Veteran’s symptoms have not adversely impacted his social, interpersonal, occupational functioning, the Veteran’s thought content was described as disorganized and circumstantial at times, with perseveration of thoughts and poor insight and judgment (11/27/2017 CAPRI, pgs. 3-5). With regard to his sinusitis, the Veteran describes sneezing, congestion, runny nose, red itchy watery eyes, itchy sire throat discomfort, cough, post nasal drip, itchy ears and a buzzing sound when exposed to odors. The odors that may spark this response includes colognes, perfumes, hair spray, aerosol sprays, paint, paint fumes, gasoline, gasoline fumes, smoke from fires, all tobacco smoke, dryer sheets, scented detergents, air fresheners, mouthwash, toothpaste, soaps, air dye, shaving cream, household cleaning products, hay, weeds, muscle relief rubs, all outdoor pollens, any type of unnatural and natural human or pet odors. The examiner found that the Veteran’s condition did impact his ability to work as he becomes very sick while out in public due to exposure odors that then make the Veteran sick and nauseated (11/16/2018 C&P Exam, pgs. 3 and 9). Based on the forgoing, and resolving all doubt in favor of the Veteran, the Board finds the evidence is at least in equipoise as to whether the service-connected disabilities preclude him from maintaining substantially gainful employment, consistent with his education and occupational experience. In summary, the Veteran's service-connected disability picture is a prospective employee with limited education and work experience and a propensity to become sick or nauseated when exposed to a variety of odors that a person would encounter in a variety of work settings (colognes, perfumes, hair spray, aerosol sprays, paint, paint fumes, gasoline, gasoline fumes, smoke from fires, all tobacco smoke, dryer sheets, scented detergents, air fresheners, mouthwash, toothpaste, soaps, air dye, shaving cream, household cleaning products, hay, weeds, muscle relief rubs, all outdoor pollens, and human or pet odors). Additionally, he rambles extensively, with responses sometimes not relevant to the questions posed. He naps during the day, demonstrates poor insight and judgement, disorganized and circumstantial thought content, with perseveration of thought, that is an inability to switch ideas or responses. The Board finds a prospective employee demonstrating these characteristics would be unable to secure or follow gainful employment. As the probative evidence of record is at least in equipoise as to whether the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment, entitlement to TDIU on an extraschedular basis is granted. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. A. Myers The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.