Citation Nr: 20021832 Decision Date: 03/27/20 Archive Date: 03/27/20 DOCKET NO. 11-16 211 DATE: March 27, 2020 ORDER Entitlement to a total disability based on individual unemployment (TDIU), prior to October 30, 2014, on an extra-schedular basis is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, the evidence is in equipoise regarding his service-connected disabilities rendering him unable to secure or follow a substantially gainful occupation consistent with his education and occupational experience beginning April 29, 2009. CONCLUSION OF LAW The criteria for an effective date of April 29, 2009, but no earlier, for a grant of extraschedular TDIU have been met. 38 U.S.C. §§ 5103, 5103A, 5110; 38 C.F.R. §§ 3.1 (p), 3.155, 3.157; 38 C.F.R. §§ 3.1 (p), 3.155, 3.340, 3.341, 3.400, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service with the United States Army from March 1971 to March 1972. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2019 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted an extraschedular TDIU effective October 30, 2014. 1. Entitlement to a TDIU, prior to October 30, 2014, on an extra-schedular basis is granted. The Veteran is seeking entitlement to a TDIU with an earlier effective date than the current beginning of October 30, 2014. For the reasons below, a grant to April 29, 2019 is warranted. The law pertaining to the effective date of a VA claim for increase in disability mandates that unless specifically provided otherwise, the effective date for the increase shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the claim for increase. 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. Law and regulation also specifically provide that the effective date of an award of increased compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if any application is received within one year from such date. 38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o). If the increase became ascertainable more than one year prior to the date of receipt of the claim, then the proper effective date would be the date of claim. In a case where the increase became ascertainable after the filing of the claim, then the effective date would be the date of increase. See generally Harper v. Brown, 10 Vet. App. 125 (1997). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340 and 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Entitlement to a total rating must be based solely on the impact of the veteran’s service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. at 363. In relevant part, service connection has been in effect for the following: transient cerebral ischemia (TCI) with residuals of urinary frequency associated with diastolic hypertension at 40 percent since October 30, 2014; bilateral visual field defect with right sided weakness at 30 percent from July 22, 2013; TCI with residual right sided weakness at 20 percent from March 22, 2010; hypertension at 10 percent since June 27, 1972; TCI (claimed as residuals of a stroke, dizziness and chronic fatigue with episodes of erratic heartbeat) at 10 percent from April 29, 2009 to March 22, 2010. Thus, the combined rating was 10 percent from June 27, 1972, 20 percent from April 29, 2009, 30 percent from March 22, 2010, 50 percent from July 22, 2013 and 70 percent from October 30, 2014. A TDIU was granted effective October 30, 2014. Prior to October 30, 2014, the Veteran did not meet the requirements for a schedular TDIU. 38 C.F.R. § 4.16 (a). When a veteran fails to meet the schedular requirements for eligibility for a total rating as set forth in 38 C.F.R. § 4.16 (a), the case may be submitted to the Director of the Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16 (b). The Board is precluded from granting a total rating under section 4.16(b) unless the issue is initially reviewed by the Director of the Compensation Service. Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). Here, the issue of extraschedular entitlement to a TDIU was referred to and considered by the Director of the Compensation Service in August 2019, who recommended that extraschedular TDIU be denied, prior to October 30, 2014, based on a lack of hospitalization or unusual pattern of disability. Although this recommendation is negative, it is not binding on the Board. The Veteran reported being employed as a laboratory analyst from January 1972 to June 2002. He also reported being employed in housekeeping from March 2006 until March 2010, working about three to four hours per day. He completed two years of college education. In his TDIU application, he stated that he became too disabled to work in January 2008. Records from the Social Security Administration (SSA) reveal that the Veteran has been found to be disabled for SSA purposes since January 2008 due to late effects of cerebrovascular disease. In an August 2009 examination for residuals of a stroke, the examiner remarked that the Veteran “cannot do fulltime job.” A June 2011 SSA decision notes that the Veteran had problems lifting things due to weakness and he lacked full bimanual dexterity. The decision ultimately concluded that due to the lack of manual dexterity, along with cognitive and psychiatric problems, all due to the Veteran’s past stroke, he would be unable to perform even unskilled labor. A February 2014 VA examination also opined that his eye condition had an impact on his functional ability, stating that he should not handle hazardous equipment or material. Another VA examination was conducted in October 2014. It was noted that the Veteran continued to complain of left-sided weakness. Further, urinary frequency was noted as daytime voiding interval as between two and three hours. Also, it was noted that during the night, the Veteran woke up five or more times per night to void. Left upper extremity weakness was described as mild. The Board notes that no medical opinion is dispositive of whether or not the Veteran is unemployable. Rather, the question of whether the Veteran’s service-connected disabilities render him unemployable is a legal determination to be made by the Board. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). Entitlement to TDIU is based on an individual’s particular circumstance. Rice, 22 Vet. App. at 452. Moreover, whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Given the above, the Board finds a grant of a TDIU on an extraschedular basis from April 29, 2009, is warranted. The evidence indicates that the Veteran has a limited work history in a laboratory, although he worked part-time as a housekeeper for a few years. The evidence also reflects that since April 29, 2009, the Veteran has problems with stroke residuals, to include hissing in the ears, dizziness, and has difficulty even at a part-time position due to his condition. See November 2009 Private Medical Note. He is also hospitalized often for his conditions. See August 2009 Private Medical Note. His July 2009 VA exam confirms that his dizziness makes his job difficult. Although the Veteran was working as a janitor from May 2009 to August 2010, he was limited to part time, at 3 to 4 hours a day. During this time, his now service-connected symptoms and medications interfered with his ability to perform even part time work. The SSA decision found that the Veteran lacked full manual dexterity and it was noted that the Veteran had problems lifting things due to his weakness and also reported dropping things. The evidence reflects that the Veteran’s service-connected disabilities would likely render him incapable of securing and maintaining substantially gainful employment in light of his education and occupational history, the latter of which is almost solely as a laboratory assistant. Thus, the evidence is at least evenly balanced as to whether his service-connected disabilities render him unable to obtain and maintain substantially gainful employment from April 29, 2009. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU on an extraschedular basis from April 29, 2009, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Robert Gyenes, 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.