Citation Nr: 21002223 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 13-24 340 DATE: January 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) from October 15, 2009 to July 11, 2011 is granted. FINDING OF FACT From October 15, 2009 to July 11, 2011, the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for an extraschedular TDIU are met from October 15, 2009 to July 11, 2011. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from May 1987 to September 1995. This matter comes before the Board of Veterans’ Appeals (Board) from a May 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge in May 2015. In July 2019, the Board remanded the appeal of entitlement to a TDIU prior to July 11, 2011, to include on an extraschedular basis, for referral to the Director of Compensation Service (Director). Pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), as the date of claim for the increased disability ratings on appeal (back disability) was January 2, 2008, the Board must consider whether a TDIU was warranted for the period from January 2, 2008 prior to July 11, 2011. In this regard, the Board notes the Veteran is currently in receipt of a TDIU from July 11, 2011. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing or following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). TDIU can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability, provided that he has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to individual unemployability benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board does not have the authority to assign an extraschedular TDIU in the first instance without initially referring the claim to VA’s Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1 (2001). Here, the Board notes that the Veteran does not meet the schedular criteria for a TDIU throughout the appeal period beginning January 2, 2008, as service connection is currently in effect for intervertebral disc syndrome with sciatic nerve involvement (back disability), bilateral lower extremity radiculopathy, right knee, left knee, and hemorrhoids for a combined rating of 50 percent from May 18, 2007, and 60 percent from March 29, 2010. 38 C.F.R. § 4.16(a). The Veteran does not meet any of the criteria listed in 38 C.F.R. § 4.16(a) that would permit his combined disabilities to be treated as a single disability. In August 2020, the Director determined that the Veteran was not entitled to TDIU on an extraschedular basis. As the Director has considered the issue in the first instance, the Board may now evaluate the claim. Wages v. McDonald, 27 Vet. App. 233 (2015). There is no regulatory definition of “substantially gainful employment,” but 38 C.F.R. § 4.16(a) states: “Marginal employment shall not be considered gainful employment.” It also states that marginal employment exists when a veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. However, “[m]arginal employment may also be held to exist, on a facts found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.” Id (Emphasis added). The question is whether the claimant is capable of performing the physical and mental acts required by employment, not whether he or she can actually find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The Veteran reported on a June 2010 VA Form 21-8940 that he was last employed full time on August 9, 2009, performing shipping and receiving for a warehouse. Further, he reported that he earned $1,976, per month, which is equivalent to $23,712 per year from September 2007 to August 2009. He earned $33,000 in 2008. Additionally, the Veteran worked part-time from July 2008 to October 14, 2009, for twenty four hours a week as a shuttle bus driver, earning $960 per month, which is equivalent to $11,520 per year. VA treatment records reflect the Veteran’s report of working two jobs, one in shipping and receiving and as a shuttle bus driver at the airport. See March 2009 VA treatment record. The cumulative amount of the Veteran’s income is well in excess of the 2008 and 2009 historical poverty thresholds. See United States Census Bureau, Poverty Thresholds, 2008-2009, www.census.gov (last accessed January 6, 2021). Thus, the Board finds the Veteran was substantially and gainfully employed up to and including October 14, 2009. From October 15, 2009 to July 11, 2011, there is no evidence that the Veteran was engaged in substantial and gainful employment. This is in accord with the economic component of entitlement to a TDIU, beginning October 15, 2009. Regarding the noneconomic component, the Veteran has reported completion of two years of college. Additionally, he completed two years of training in computer-aided architectural design. His post-service employment consisted of working as a dock work supervisor, medication deliverer, warehouse staff, shuttle bus driver, and a forklift operator. See VA Forms 21-8940. During VA treatment in April 2009, the Veteran reported difficulty working due to back and right leg radiation. In November 2009, he reported that he quit his shuttle bus job after falling asleep at the wheel. See November 2009 VA treatment record; see also July 2011 VA treatment record (Veteran reported prescribed muscle relaxants make him too drowsy to function). In his February 2009 Notice of Disagreement (NOD), the Veteran reported that his back disability worsened and impacted his ability to work. Specifically, the Veteran indicated that standing and walking for short periods of time caused excruciating pain. Further, he reported that his back pain impacted his ability to perform the physical demands of work, which often required bending and lifting heavy objects on a frequent basis. The Board notes that the April 2009 VA examiner determined that the effects on the Veteran’s back disability on his usual occupation was avoidance of prolonged standing, walking, bending, and lifting. An August 2009 VA vocational rehabilitation counselor found the Veteran to have a serious employment handicap due to the number and severity of his service-connected disabilities, his chronic pain, and lack of education and training for suitable employment. VA vocational rehabilitation records indicate that the Veteran was consistently attending college on a full time basis from March 2010 to March 2012, when he left to address medical issues. The Veteran testified that he was in vocational rehabilitation in 2010 and was taking college courses. See May 2015 Board Hearing at 8. However, the Veteran testified that his back disability caused pain and discomfort from sitting. After completed two years, in 2012, the Veteran withdrew from the program, citing his back disability as the reason. In April 2010, the Veteran reported that his back disability worsened and that his doctor put him on weightlifting restrictions of 50 pounds, which limited his employment. See also May 2011 letter from Dr. C.B. (noting work restrictions following an acute back injury during a physical therapy session). Furthermore, the Veteran asserted that he was trained in the field of warehouse jobs, which he was no longer able to perform due to his service-connected back disability. The Board acknowledges the Veteran’s report that although he has some training in computer-aided architectural design, he does not have enough practical experience to maintain a job in that field. See December 2015 VA examination report The Board notes that the July 2010 VA examiner determined that the effects on the Veteran’s knee disability on his usual occupation was a limitation in walking and standing due to knee pain that required the use of a brace. Here, the probative evidence of record demonstrates that the Veteran’s back and knee disabilities have been productive of limitations that precluded him from securing or following substantially gainful employment since October 15, 2009. The Board notes that the Director determined that lighter physical employment or sedentary employment was not precluded prior to July 11, 2011. However, the Veteran does not have work experience that is readily applicable to a sedentary occupation based on the ordinary meaning of the term. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). Further, there is objective evidence that the prescribed medication has caused marked drowsiness. To the extent that the totality of the medical evidence does not weigh in favor of the claim, the ultimate determination as to entitlement to a TDIU is made by VA adjudicators, rather than medical examiners. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Given the examiners’ favorable findings, particularly the April 2009 VA examiner’s opinion and the August 2009 VA vocational rehabilitation counselor’s opinion, coupled with the Veteran’s competent and credible reports and affording him the benefit of the doubt, the Board finds that he was unable to secure or maintain a substantially gainful occupation due to his service-connected disabilities. Accordingly, entitlement to a TDIU is warranted from October 15, 2009. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Forde, 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.