Citation Nr: 20021244 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 16-20 474 DATE: March 25, 2020 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis prior to March 22, 2017 is granted. FINDING OF FACT 1. The Veteran did not meet the schedular criteria for entitlement to a TDIU prior to March 22, 2017. 2. The evidence as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities prior to March 22, 2017 is, at least, in relative equipoise. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis prior to March 22, 2017 have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the U.S. Marine Corps from July 1990 to July 1994. The claim was previously before the Board and was remanded for additional development in September 2018. TDIU prior to March 22, 2017 Under the applicable criteria, total disability ratings for compensation based upon individual unemployability 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b). In this case, the Veteran does not meet the objective, minimum percentage requirements, set forth in 38 C.F.R. § 4.16(a), for award of a TDIU prior to March 22, 2017, as service connection prior to this date is in effect for degenerative arthritis of the lumbar spine, rated 20 percent disabling and radiculopathy of the right and left lower extremities, rated 10 and 20 percent disabling, respectively. However, a total rating, on an extra-schedular basis, may nonetheless be granted, in exceptional cases (and pursuant to specifically prescribed procedures), when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. Hence, consideration of whether the Veteran is, in fact, unable to obtain and follow substantially gainful occupation, is still necessary in this case. 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. Therefore, in the case of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet these schedular percentage standards, the case should be submitted to the Director, Compensation and Pension Service, for extra-schedular consideration. The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. See 38 C.F.R. § 4.16(b). The central inquiry is “whether a veteran’s service- connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether a veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. In this regard, the Board notes a September 2014 VA examination report which indicates limited range of motion of the Veteran’s lumbar spine. Further, a May 2014 VA neurological examination indicates moderate to severe pain and numbness in the Veteran’s right and left lower extremities as well as decreased muscle strength which limit the Veteran’s ability to function in an occupational setting. In addition, the Veteran’s former employer indicated in May 2014 that the Veteran took “a lot” of time off because of his back problems, and is no longer working with the company due to an inability to perform remedial tasks such as climbing a ladder, walking, bending down, or lifting materials. The Veteran reports difficulty tying his shoes, and that he is unable to bend down and regularly walks with a cane and falls often. The Veteran previously worked in the construction field as a painter and laborer. The Veteran’s former employer notes that he was no longer able to regularly work due to his pain and difficulty climbing and lifting due to his low back pain. Social Security Administration (SSA) records note the Veteran is only able to stand and walk for 10 to 15 minutes and can ambulate for 30 feet without the use of a cane. SSA records note the Veteran was found disabled in part due to his low back disability. The final determination with respect to a veteran’s entitlement to a TDIU is an adjudicatory, and not a medical, function. The Board acknowledges the VA examinations of record do not ultimately conclude the Veteran is unemployable due to his service-connected disabilities. However, “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). 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. The Board acknowledges a November 2019 Memorandum from the Executive Director of Compensation who determined after review of the record that the evidence failed to support the contention that the Veteran’s service-connected disabilities prevented gainful employment prior to March 22, 2017. However, the Board is not bound by the Director’s opinion as to an extraschedular rating but, instead, must consider and weigh that evidence along with the other evidence. In this case, the Board finds that the evidence discussed above is of greater probative value than the November 2019 Memorandum as to whether the Veteran’s service-connected disabilities precluded substantial and gainful employment prior to March 22, 2017. Under the circumstances, in light of the totality of the record, and giving due consideration to the Veteran’s description of the functional effects of his service-connected lumbar spine and associated disabilities, as they relate to his level of education and prior occupational experience, the Board is persuaded that the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities prior to March 22, 2017. The evidence, at a minimum, gives rise to a reasonable doubt on the matter. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. A TDIU is therefore granted prior to March 22, 2017. K. R. Kardian Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.