Citation Nr: 20043728 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 09-41 615 DATE: June 29, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran's service-connected disabilities involving his back and lower extremities prevent him from securing or following a substantially gainful occupation considering his education and occupational experience. CONCLUSION OF LAW The criteria for a TDIU have been met on an extra-schedular basis. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran claims that he is unable to work due to his service-connected back disability with involvement in both lower extremities. For the reasons set forth below, the Board agrees and finds that a TDIU is warranted. Procedural Background The Veteran served on active duty in the United States Navy from June 1994 to April 2003. His claim comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2008 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). This case has been before the Board on several prior occasions. In October 2013, the Board remanded the case for further development and referral to the Director of the Compensation Service (Director) for TDIU consideration on an extra-schedular basis. In August 2016, the Director denied the claim. In August 2017, the Board remanded the case again to obtain Social Security Administration (SSA) records and to submit the claim to the Director. The Director again denied the claim. In May 2019, the Board also denied the claim based largely on the Director’s decision. The Veteran appealed the Board’s decision to the U.S. Court of Appeals for Veterans Claims (“Court” or “CAVC”). In April 2020, the Court vacated that decision consistent with the parties’ Joint Motion for Remand after finding that the Board did not provide an adequate statement of reasons and bases. The case has been returned to the Board. Legal Criteria A TDIU is warranted when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment, consistent with his or her education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Several avenues are available for a TDIU award. A TDIU may be assigned where the scheduler rating is less than total, when, in the judgment of the rating agency, 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 service-connected 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When a Veteran does not meet the scheduler requirements for a TDIU rating under 38 C.F.R. § 4.1(a), rating boards are still required to submit to the Director of the Compensation Service for extra-scheduler consideration all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). An assessment for extra-scheduler referral requires consideration of the Veteran's service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Veteran's age and the effects of non-service-connected disability, however, are cannot be considered. 38 C.F.R. §§ 3.341(a), 4.19. The Board cannot consider a TDIU on an extra-scheduler basis in the first instance. Instead, the Board is required to refer all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), to the Director for extra-scheduler consideration. 38 C.F.R. § 4.16 (b). The Board then has jurisdiction to review determinations by the Director. Wages v. McDonald, 27 Vet. App. 233 (2015). Unlike the criteria for an extra-scheduler rating under 38 C.F.R. § 3.321, the grant of an extra-scheduler rating for a TDIU under 38 C.F.R. § 4.16 is based on a subjective standard that seeks to determine if a particular Veteran is precluded from employment based on his or her service-connected disabilities. See VAOPGCPREC 6-96 (1996). Analysis The Veteran’s service-connected disabilities include degenerative disc disease (DDD) of the lumbar spine with L4-5 instrumentation and fusion, rated at 40 percent, with a separate 10 percent rating assigned for radiculopathy in each lower extremity. His combined rating is therefore 50 percent. The Veteran therefore does not meet the criteria for a TDIU on a schedular basis, as he does not have a single disability rated at 60 percent or a combined rating of 70 percent. However, because the Director has considered the Veteran’s claim on an extra-schedular basis, the Board has jurisdiction to decide the issue. The Board further notes that the Director’s decision is a non-binding administrative determination and does not constitute medical evidence. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015). Having said that, the Board find that the evidence supports assigning a TDIU on an extra-schedular basis. With respect to his education, the Veteran reported that he had received a high school diploma in 1994 and had completed 22 credit hours at community college. His occupational history includes having worked as a diesel mechanic for 10 years, which he stopped due to difficulty bending, lifting, and twisting. He had also worked as an environmental representative for a year and had done administrative personnel work for a year. Thus, the Veteran spent much of his career working as a mechanic – which involves a significant amount of lifting, bending, and twisting – with no significant specialized training or education in any other field. When examined by VA in August 2009, the Veteran told the examiner that he had lost his job last year as a mechanic because he had missed too many days due to back pain. An SSA decision, a report from VA’s own Appeals Management Center (AMC), and a vocational report all support assigning a TDIU based on the Veteran’s educational and occupational background. The Board places significant probative value on SSA’s determination that the Veteran had not engaged in substantial gainful activity since December 2013 due to severe impairments caused by his back and obesity. And while obesity is not service connected, a December 2017 AMC decision noted that the Veteran’s back disability was the primary reason he was unable to work, and that obesity was merely a secondary reason he could not work. The AMC therefore proposed assigning the Veteran a TDIU. And lastly, a December 2016 vocational report noted that the Veteran was medically required to use a cane and that he could never operate a motor vehicle. It is unclear how anyone can work without the ability to drive, especially with a limited ability to lift, bend, and twist. Nevertheless, the Director concluded that none of the available evidence supported the Veteran’s contention that any of his service-connected disabilities or combination of the effects of the disabilities prevented all types of gainful activity. The Board disagrees. The Board places significant probative value on the decisions by the SSA and the AMC, which found that the Veteran is unemployable by reason of his service-connected back disability. This is consistent with the August 2009 VA examination report which notes that the Veteran had lost his job because he had missed too many days due to back pain. Moreover, unlike the criteria for an extra-scheduler rating under 38 C.F.R. § 3.321, the grant of an extra-scheduler rating for a TDIU is based on a subjective standard that seeks to determine if a Veteran is precluded from employment based on his service-connected disabilities. Applying this subjective standard, the Board finds that a TDIU on an extra-schedular basis is warranted. The Board thus concludes that the Veteran is unable to maintain gainful employment as a result of his service-connected disabilities. His claim for a TDIU is therefore granted. JOHN Z. JONES Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Douglas Massey, 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.