Citation Nr: 20037516 Decision Date: 06/02/20 Archive Date: 06/02/20 DOCKET NO. 17-39 372 DATE: June 2, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis prior to June 12, 2015, is granted. FINDING OF FACT Prior to June 12, 2015, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to TDIU on an extraschedular basis prior to June 12, 2015, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1964 to April 1966. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO), which denied the Veteran entitlement to TDIU on an extraschedular basis prior to June 12, 2015. A Board hearing was held in February 2018. A transcript is of record. In April 2018, the Board remanded the Veteran’s claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board’s remand directives. Specifically, the Board remanded for referral to the Director of the Compensation Service for extraschedular consideration of entitlement to TDIU. The Board notes that in the same order, the Board granted TDIU on a schedular basis from June 12, 2015. The claim is back before the Board for further appellate proceedings. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73. The Veteran does not currently meet the schedular criteria for TDIU. However, as stated above, the Board referred the claim to the Director for entitlement to extraschedular TDIU in April 2018. See 38 C.F.R. § 4.16(b). The Director denied entitlement to an extraschedular TDIU prior to June 12, 2015. See November 2019 Correspondence. The Director’s decision is akin to a de facto AOJ decision, and the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). As of August 18, 2014, the Veteran was service connected for the following disabilities: (1) low back degenerative disc disease; (2) left ankle post-traumatic arthritis; and (3) left ankle scar. Thereafter, the Veteran had one additional service-connected disability, radiculopathy associated with his low back rated at 10 percent disabling. In the Board’s April 2018 remand, the Board noted that all of the Veteran’s currently service-connected disabilities, listed above, derive from his left ankle post-traumatic arthritis. See April 2018 Board Remand at 10. The Veteran has alleged that he cannot work due to his left ankle and concomitant service-connected symptoms. See Board hearing Tr. at 6. The Veteran has a high school education and completed two years of college. See December 2001 VA Form 21-8940. Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities prior to June 12, 2015. The Veteran’s primary profession was as a cook until 2004 when he retired due to his left ankle disability. See October 2014 VA examination; see also Board hearing Tr. at 10. When he did work, he experienced pain of a severity that he was no longer able to walk. See Board hearing Tr. at 6. He has needed the assistance of his wife to help him to take off his shoes and get off his ankle routinely. Id. Additionally, his back pain causes significant daily pain that further impedes his ability to walk and remain active. See July 2017 VA Form 9. An October 2014 VA examiner noted that the Veteran has pain while sitting, after standing for one or two minutes, and after walking for five minutes. See October 2014 VA examination report. Another VA medical provider opined that Veteran’s left ankle impaired his ability to walk or stand for prolonged periods. See March 2015 disability benefits questionnaire. Furthermore, a June 2015 VA examiner opined that the Veteran’s low back disability impairs the ability to perform any occupation which require prolonged sitting, standing, walking, or bending. See June 2015 VA examination report. (Continued on the next page)   The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner’s role is limited to describing the effects of disability upon the person’s ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds the Veteran, his medical treatment provider, and the VA medical examiners probative as to the Veteran’s functional limitations attributable to his service-connected disabilities. Therefore, the Board finds that the Veteran’s service-connected left ankle and low back prevented him from obtaining and maintaining substantially gainful employment prior to June 12, 2015. Accordingly, the criteria for TDIU on an extraschedular basis have been met prior to June 12, 2015, and the claim is granted. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Strickland 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.