Citation Nr: 20074792 Decision Date: 11/23/20 Archive Date: 11/23/20 DOCKET NO. 18-49 133 DATE: November 23, 2020 REMANDED Entitlement to an earlier effective date prior to July 29, 2016, for the grant of a total disability rating for individual unemployability (TDIU) due to service-connected disabilities to include on an extraschedular basis is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1963 to June 1966 and from July 1966 to May 1972. This matter was previously before the Board of Veterans Appeals (Board) in May 2020, when it was remanded to the agency of original jurisdiction (AOJ) for additional development. After taking further action including contacting the Social Security Administration for medical records, the AOJ confirmed and continued the prior denial and returned the case to the Board. 1. TDIU Although additional delay is regrettable, a remand is necessary to ensure that there is a complete record upon which to decide the Veteran’s claim and to afford him every possible consideration. As noted above, this case was previously remanded in May 2020, in part, so that the Veteran’s TDIU claim could be referred to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16(b). On August 2020, the AOJ issued a Supplemental Statement of the Case (SSOC), which denied TDIU but did not refer the matter for adjudication pursuant to 38 C.F.R. § 4.16(b). The AOJ concluded that referral to the Director of the Compensation Service was not warranted because the Veteran was “not unable to secure or follow a substantially gainful occupation as the result of [the Veteran’s] service connected conditions prior to July 29, 2019.” See August 2020 SSOC. The AOJ determined that the Veteran was not precluded from performing sedentary work. Id. The AOJ also stated that the Veteran’s former employer indicated he was laid off and did not receive any work accommodations, in concluding that the Veteran was not unemployable. In October 2020, the Veteran’s representative argued that it was “correct that this veteran was laid off in 2011, however, it is also true that this veteran was not able to work in his normal employment in the area where he lived.” See October 2020 Appellate Brief. The Board agrees that the Veteran being laid off from his last employment does not preclude finding that he is unemployable. The Board disagrees with the AOJ’s conclusion that the Veteran was capable of substantially gainful employment. In this regard, the AOJ finding does not comply with the holdings of Ray v. Wilkie, 31 Vet. App. 58, 73 (2019) or Withers v. Wilkie, 30 Vet. App. 139 (2018). In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include the Veteran’s: work history, education, skill, and training; the Veteran’s physical ability to perform work activities; and the Veteran’s mental ability to perform work activities required by the Veteran’s occupation. Here, the AOJ did not address the noneconomic factors including the Veteran’s physical and mental abilities to perform work activities. The Court in Withers v. Wilkie, held that the term “sedentary” has no legal significance to the issue of employability under VA regulations; it is not defined for VA employability purposes; and, when it is used, there must be an explanation as to how it is applied to a veteran’s individual case. Withers v. Wilkie, 30 Vet. App. 139 (2018). Here, the AOJ did not define the term sedentary in light of the Veteran’s individual case. Conversely the Board finds that there is evidence that shows the Veteran may have been unable to secure or follow a substantially gainful occupation due to his service-connected disabilities during the appeal. When determining whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. § § 3.341, 4.16, 4.19. The Veteran contends from August 2012 forward he has been unable to secure or follow a sustainably gainful occupation due to his service-connected disabilities, specifically his post-traumatic stress disorder (PTSD), tinnitus, back disability, and short-term memory loss. Specifically, he reported that he stopped working as a pilot manager when his job was eliminated in April 2011 and he became unemployed. See July 2014 VA Form 21-4138, Statement in Support of Claim. The Veteran contends that he began receiving Social Security disability benefits due in part to his service-connected disabilities. The Veteran has not worked since 2011 and previously worked as a pilot, flight engineer, and pilot manager. The Veteran stated that he “had trouble walking and standing for any long period of time (5 minutes). I also discovered I was unable to concentrate and had developed short term memory loss.” Id. The Veteran stated he had difficulty lifting due to his back disability and that his tinnitus resulted in an inability to “understand anyone in an environment where there are several people talking or music in the background.” Id. Notably, the October 2013 VA psychiatric examiner indicated that the Veteran’s PTSD symptoms caused clinically significant distress or impairment in social, occupation, or other important areas of functioning. See October 2013 VA Initial PTSD Disability Benefits Questionnaire (DBQ). Additionally, the October 2013 VA examiner for the Veteran’s back disability noted that the Veteran was limited in his ability to sit for 15 to 20 minutes at a time and could stand for 10 minutes at a time, and was able to sit/stand for four hours each in an eight hour work day. See October 2013 VA Back (Thoracolumbar Spine) Conditions DBQ. However, the AOJ did not address any of these facts in finding that the Veteran was capable of obtaining and maintaining substantially gainful employment. Thus, based on the foregoing discussion, the Board finds that for the purposes only of consideration of referral for extraschedular consideration in the light most favorable to the Veteran there is a plausible basis for a finding of TDIU could be warranted. Namely that the Veteran’s PTSD, tinnitus, and back disability have resulted in ongoing frequency and symptomology would make obtaining maintaining employment in the airplane/flight field difficult. However, the Board does not have the authority to assign an extraschedular TDIU in the first instance. Under 38 C.F.R. § 4.16(b), if the schedular percentage threshold criteria are not met for TDIU, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Services, for extraschedular consideration of an earlier effective date for TDIU. 38 C.F.R. § 4.16 (b). Neither the AOJ nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Accordingly, a remand is necessary because referral to the Director Compensation and Pension Service for consideration of entitlement to a TDIU is warranted. 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: 1. Refer to the Director, Compensation and Pension Service, the matter of whether a TDIU is warranted on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) prior to July 29, 2016. A full statement as to the Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be provided. Should the Director indicate that further evidentiary development is required, such development should be undertaken. 2. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). 3. THE AOJ MUST REVIEW THE CLAIMS FILE AND ENSURE THAT THE FOREGOING DEVELOPMENT ACTION HAS BEEN COMPLETED IN FULL. IF ANY DEVELOPMENT IS INCOMPLETE, APPROPRIATE CORRECTIVE ACTION MUST BE IMPLEMENTED. IF ANY REPORT DOES NOT INCLUDE ADEQUATE RESPONSES TO THE SPECIFIC OPINIONS REQUESTED, IT MUST BE RETURNED TO THE PROVIDING EXAMINER FOR CORRECTIVE ACTION. (Continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gunella Lilly, Associate Counsel 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.