Citation Nr: 21002251 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 14-24 725A DATE: January 13, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis prior to November 8, 2016, is granted, subject to the laws and regulations governing the payment of monetary awards. FINDING OF FACT The Veteran’s service-connected disabilities render him unemployable. CONCLUSION OF LAW The criteria of a TDIU on an extraschedular basis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.7, 4.15, 4.16, 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1966 to March 1968. This matter was previously before the Board of Veterans’ Appeals (Board) in April 2018 and April 2020 and was remanded for further development. The development has been completed and is again before the Board. The Board finds there has been substantial compliance with its April 2020 remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial and not strict compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)); see also Dyment v. West, 13 Vet. App. 141, 14647 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board’s remand). Beyond the above, it is valuable to note that the Veteran has been in receipt of a 100 percent disability rating and special monthly compensation from November 8, 2016. This is the only issue on appeal. The Veteran contends that his service-connected posttraumatic stress disorder (PTSD) with headaches prevent him from obtaining a substantially gainful occupation prior to November 8, 2016. Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 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. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. 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). The fact that a veteran is unemployed or has difficulty obtaining employment is not enough to warrant a TDIU. See Van Hoose v. Brown, 4 Vet. App. 361. The law provides that a total disability rating 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 as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall 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. See 38 C.F.R. § 4.16 (a). Provided a veteran does not meet these minimum percentage rating requirements of § 4.16 (a) for consideration of a TDIU, he may still be entitled to this benefit on an extra-schedular basis under § 4.16 (b) if it is established he is indeed unemployable on account of his service-connected disabilities. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. If the record supports the claim, the Board must first forward the case to the Director of the Compensation Service for extraschedular consideration. The Board upon receipt of that determination is not bound to accept it, and may resolve the question of extraschedular entitlement of its own accord. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (the findings of the Director of Compensation Service on extraschedular consideration are not evidence, but rather a decision of the AOJ reviewed de novo by the Board). The degree of impairment in occupational functioning that is generally deemed indicative of unemployability consists of a showing that the veteran is “[in] capable of performing the physical and mental acts required by employment,” and is not based solely on whether he is unemployed or has difficulty obtaining employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). Rather, the record must demonstrate some factor that takes his situation outside the norm since the VA Rating Schedule already is designed to take into consideration impairment that renders it difficult to obtain and keep employment. Id. See also 38 C.F.R. §§ 4.1, 4.15. The Board notes that entitlement to a TDIU extraschedular rating under 38 C.F.R. § 4.16 (b), and an extraschedular rating under 38 C.F.R. § 3.321 (b)(1), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321 (b)(1) is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran’s disabilities. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16 (b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Prior to November 8, 2016, the Veteran was service connected for the following: • Posttraumatic stress disorder, rated as 50 percent disabling; • Tinnitus associated with hearing loss, bilateral, rated as 10 percent disabling; and • Hearing loss, bilateral, rated as 0 percent disabling. The Veteran’s combined evaluation for compensation prior to November 8, 2016 was 60 percent. Therefore, the Veteran did not meet the criteria for a schedular TDIU. The Veteran has a high school education and last worked full-time in 1975. See December 2015 VA Form 21-8940, Application for Increased Compensation Based on Unemployability. During a February 2011 VA examination, the Veteran stated he stopped working because he was having bad headaches and could not complete his work properly. The Veteran previously worked jobs as a painter, sandblaster, truck driver, shipfitter, and school bus driver. See June 1994 Social Security Administration decision. A vocational expert opined that jobs which the Veteran can perform do not exist in significant numbers as a result of the reduced range of work which the Veteran can perform at the sedentary and light levels of exertion. Id. The Veteran’s former physician at the VA opined that the Veteran is unemployable due to his PTSD. See October 2010 Third Party Correspondence. Furthermore, the physician opined that the Veteran is not able to meet the mental demands of unskilled sedentary work and is not a candidate for vocational rehab, training, or job placement. Id. However, a November 2018 VA examiner opined that the Veteran is capable of work despite his PTSD. The examiner noted the Veteran continues to clean his own house and performs yard work and recommended a list of administrative jobs. In an April 2020 decision, the Board remanded this matter for referral to the Director of Compensation and Pension for an opinion as to whether an extraschedular TDIU is warranted. In a September 2020 opinion, the Director opined an extraschedular TDIU was not warranted. The Director reviewed the Veteran’s medical record and the Veteran’s statements regarding his ability to work. Based on the totality of the evidence, the Director concluded extraschedular entitlement to a TDIU was not shown due to the Veteran’s service-connected disabilities. The Director explained the evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevents gainful employment. The Board has reviewed the evidence of record, including the Director’s opinion. The Board finds when taken as a whole, the preponderance of the evidence showing the Veteran’s education level, his skill set, the vocational assessment opinion, and the Veteran’s testimony show he is unemployable. Therefore, the Board affords this evidence the most weight, outweighing the Director’s opinion the Veteran remains employable. The Veteran had previously worked in manual labor positions and his PTSD with headaches makes physical labor unfeasible. Based on the Veteran’s education and lack of experience in clerical or other types of office work, the Board finds this type of work would also not be feasible for the Veteran to accomplish. Therefore, a TDIU on an extraschedular basis will be granted. John J. Crowley Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura Cochran, 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.