Citation Nr: 20048050 Decision Date: 07/17/20 Archive Date: 07/17/20 DOCKET NO. 17-48 699 DATE: July 17, 2020 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted for the entire period on appeal. FINDING OF FACT For the entire period on appeal, the Veteran’s service-connected anxiety disorder and low back condition have rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1974 to December 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an April 2013 rating decision. In an April 2019 decision, the Board denied the Veteran’s claim of entitlement to an increased disability rating for lumbar spine degenerative joint disease with compression deformity as well as his claims of entitlement to service connection for fecal incontinence and bladder incontinence. The Board granted the Veteran’s claim of entitlement to service connection for an acquired psychiatric disorder. As such, the Board remanded the Veteran’s claim for TDIU for development and adjudication after a rating was assigned for the Veteran’s acquired psychiatric disorder. Entitlement to a TDIU VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his or her service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability 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). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). “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) (2017). The Board notes that the Veteran's TDIU claim was raised in the context of his initial increased rating claim for his back disability. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). The Veteran's back disability was initially assigned a 10 percent disability rating effective from April 16, 2012, the date of his claim. Accordingly, the appeal period begins on April 16, 2012. The Veteran is assigned a 70 percent disability rating for his service-connected anxiety disorder from February 16, 2016, and a 30 percent rating prior to that date; a 10 percent disability rating was assigned for his service-connected back condition from April 16, 2012; and a noncompensable disability rating for is service-connected scar, residual of pilonidal cyst, from August 27, 2003. As such, the Veteran meets the schedular criteria for TDIU, beginning on February 16, 2016. For the period beginning April 16, 2012, the Veteran’s 40 percent combined evaluation does not render him eligible for a TDIU under the schedular percentage requirements contemplated by VA regulation. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, all Veterans who are shown to be unable to secure and follow a substantially gainful occupation by reason of service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the RO first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Indeed, in Bowling, the Court reversed the Board only to the extent that the Board concluded that the Veteran “was ineligible for 4.16(b)-TDIU consideration.” Id. However, the Board finds that Bowling and Floyd’s prohibition against granting an extraschedular TDIU in the first instance has been implicitly overruled through the issuance of the Court’s decisions in Thun and Anderson, as well as the Federal Circuit’s affirmance of Thun and its decisions in Disabled Am. Veterans v. Sec’y of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003) and Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). It simply defies logic and the intent of the law that the Board is able to review de novo the determinations of the Direction of Compensation, yet must send it to him in the first instance, even when the Board finds that the evidence of record already shows the Veteran is incapable of obtaining or engaging in substantially gainful employment. Moreover, in a recent precedential decision, one of the Judges of the Court, in a concurring opinion, disagreed with the holding in Bowling and, cited Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992), in determining that the Board had the authority to award extraschedular TDIU in the first instance. See Wages v. McDonald, No. 13-2694, 2015 WL 293616, at *6 (Jan. 23, 2015) (Kasold, J., concurring). The Wages majority separately noted that, “[i]n sum, the Secretary’s contention that § 4.16(b) vests an extraschedular TDIU award solely within the nonreviewable discretion of the Director conflicts with the statutory mandate that the Board provide the final decisions on section 511(a) benefits determinations. Accordingly, this contention is rejected.” Id. at *5. (emphasis added). Finally, the majority, in a footnote, observed the current absurdity inherent in the § 4.16(b) process, noting that “Although it is not clear how the Secretary’s approach of inserting the Director into the regulatory process while refusing to recognize the Director as the agency of original jurisdiction fits within the statutory scheme for adjudicating VA benefits claims, see, e.g., 38 U.S.C. § 7105 (providing for Board review of decisions by an agency of original jurisdiction), we need not further address this issue in the absence of a direct challenge to that process.”) Id. at *5 fn 4 (emphasis added). Therefore, given the Board’s reasoning as outlined above, it will not make the Veteran wait for any further processing by VA. See Delisio v. Shinseki, 25 Vet. App. 45, 63 (2011) (Lance, J., concurring) (“There is an unfortunate—and not entirely unfounded—belief that veterans law is becoming too complex for the thousands of regional office adjudicators that must apply the rules on the front lines in over a million cases per year.”); cf. Coburn v. Nicholson, 19 Vet. App. 427, 434 (2006) (Lance, J., dissenting) (noting that an unnecessary remand “perpetuates the hamster-wheel reputation of veterans law”). Based on the evidence of record, the Board finds that the Veteran’s service-connected anxiety disorder and low back disability render him unable to obtain or sustain substantially gainful employment. The Veteran has submitted competent and credible lay evidence to support his claim. In July 2018, the Veteran’s friend provided a statement describing the Veteran as anxious and isolated. Similarly, in June 2020, the Veteran’s wife provided a statement describing her observations of the Veteran’s daily struggles with physical and mental conditions. The Veteran’s stepdaughter provided an October 2015 statement describing the Veteran’s “severe mental issues” with anger. Review of the Veteran’s medical records shows evidence of bad back pain, an inability to tolerate others, a short fuse, anxiety, isolation, and occasional hallucinations. A January 2013 VA pain clinic note reveals that in addition to pain, the Veteran endorsed longstanding psychological issues, primarily irritability and anxiety, which negatively affected his sleep, occupational, and recreational functioning. In July 2013, a VA examiner found occupational and social impairment due to mild or transient symptoms which decreased work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication. The examiner noted that the Veteran had a primary diagnosis of antisocial personality disorder but found that given chronicity, differentiation of impairment due to the anxiety and personality disorders would be speculative. However, the examiner found the Veteran’s anxiety disorder accounted for his situational anxiety tied to coping with his current life circumstance and was not a result of his military service. Additionally, the examiner noted that the Veteran’s test results indicated purposeful exaggeration. In February 2016, a private psychiatrist found the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his anxiety disorder. In June 2020, Dr. M.B., a private physician, found the pain medication the Veteran used to treat his back condition throughout the period on appeal impacted his ability to stay focused to the point that he would not be able to complete simple repetitive tasks for 7 hours of an 8-hour workday. Regarding his service-connected back condition, the Veteran has competently and credibly reported back pain and limitation of motion. VA treatment records from 2012 to present indicate use of a cane and prescription medication for back pain. In August 2013, a VA examiner opined that the Veteran’s back conditions would prevent him from performing heavy manual labor. The Board notes that the majority of the Veteran’s employment history, as provided to the Social Security Administration in November 2011, appears to have consisted of manual labor. Therefore, the limitations caused by the Veteran’s service-connected back condition prohibit him from completing work suitable for his acquired skills. Moreover, although the Board acknowledges the July 2013 VA opinion, the record also indicates that the side effects from pain medication and symptoms of the Veteran’s service-connected anxiety render him incapable of performing the mental acts required by employment. (Continued on the next page)   Resolving all reasonable doubt in the Veteran’s favor, the Board finds that the Veteran’s service-connected disabilities render him unable to secure or follow a substantially gainful occupation, and entitlement to a TDIU is warranted on an extraschedular basis for the period prior to February 16, 2016 and on a schedular basis thereafter. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). K.C. Spragins Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.