Citation Nr: 21002500 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 16-19 459 DATE: January 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is denied. FINDING OF FACT The evidence of record shows that the Veteran’s service-connected disorders alone have not rendered it impractical for him or the average person to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1984 to May 1988. In an October 2018 decision, the Board denied entitlement to a rating in excess of 20 percent for complex partial seizures. The Veteran appealed the Board’s October 2018 decision to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a joint motion for partial remand (JMPR), the Court remanded the Veteran’s claim for a TDIU to the Board for adjudication finding that the Board erred in its October 2018 decision by failing to address the Veteran’s contention that his service-connected disabilities prevent him from obtaining and maintaining substantially gainful employment. The Veteran did not appeal the Board’s denial of a rating in excess of 20 percent for complex partial seizures. See Pederson v. McDonald, 27 Vet. App. 276, 285 (2015) (en banc) (dismissing appeal as to issues abandoned by a represented appellant). The Board remanded this matter in December 2019 so it could be referred to the VA's Director of Compensation Service (Director) for extra-schedular consideration under the special provisions of 38 C.F.R. § 4.16(b). To this end, there has been the required substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). In July 2020, the Director denied entitlement to a TDIU on an extraschedular basis. The case has returned to the Board for appellate review. Entitlement to a TDIU on an extraschedular basis is denied. The Veteran is seeking entitlement to an extraschedular TDIU due to his service-connected complex partial seizures. A total disability rating may be granted where the schedular rating is less than 100 percent and the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. A finding of TDIU is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. 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 age or to the impairment caused by non-service-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 record must reflect that circumstances, apart from non-service-connected conditions, place the claimant in a different position than other veterans having the same compensation rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in and of itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the veteran, in considering his service-connected disabilities, can perform the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). 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 as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more. If there are two or more such 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. 38 C.F.R. § 4.16 (a). The combined rating is achieved by “adding” the disability ratings together. However, this is not the conventional addition of numerical values. The efficiency of the individual for employment purposes is not reflected as a numerical value equivalent to the assigned disability rating; in terms of actual efficiency, the number will be lessened under the regulation. However, VA recognizes that earning capacity is affected exponentially as a less severe service-connected disability is added to the most severe service-connected disability, thereby reflecting the ever-diminishing efficiency of the individual. See 38 C.F.R. § 4.25. The United States Court of Appeals for the Federal Circuit has held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the VA Regional Office. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Additionally, “substantially gainful employment” is defined as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to the veteran’s earned annual income. See Faust v. West, 13 Vet. App. 342 (2000). The determination as to whether a TDIU is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). As stated, consideration may be given to level of education, special training and previous work experience in arriving at a conclusion, but not to age or impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the United States Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Marginal employment, odd-job employment and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. See 38 C.F.R. § 4.17 (a). The Board has reviewed all the evidence in the Veteran’s claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. The Veteran’s service-connected disabilities currently have a combined disability rating of 30 percent. The Veteran’s complex partial seizures are rated at 20 percent, and his tinnitus is rated at 10 percent. The Veteran’s bilateral hearing loss and scar, right middle finger, are both service connected at noncompensable, or zero percent, ratings. As such, the Veteran does not currently meet the schedular requirements for a TDIU. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). That notwithstanding, it is the policy of the VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Therefore, although the schedular criteria for TDIU, as set out in 38 C.F.R. § 4.16 (a), are not met, a total rating on an extraschedular basis may nonetheless be granted in exceptional cases (and pursuant to specifically prescribed procedures) when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). To accord justice, therefore, in the exceptional case where the schedular ratings are found to be inadequate, the Director, upon field station submission, is authorized to approve an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. Neither the AOJ nor the Board is permitted to assign an extraschedular rating in the first instance. Floyd v. Brown, 9 Vet. App. 88, 95 (1996)). However, the Board may review the later determinations of the Director. Anderson v. Shinseki, 22 Vet. App. 423, 427. The Veteran’s service-connected disabilities, employment history, education and vocational attainment, and all other factors bearing on the issue will be considered. 38 C.F.R. §§ 3.341, 4.16 (b), 4.19. The Veteran contends that his service-connected seizures interferes with his ability to obtain and maintain employment. Medical records show that the Veteran has occasional difficulty if he has been standing for too long. However, the medical evidence also shows that many of the difficulties experienced by the Veteran in a workplace setting can be alleviated if he is sitting down and if he is in a setting that is aware of his disability. The Veteran’s medical history shows no evidence of him suffering from major seizures. Despite the medical evidence on record, the Veteran contends that the rating schedule does not adequately encompass his specific situation. As such, and pursuant to the JMPR, the Board remanded this matter in December 2019 for further evidentiary development. The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extra-schedular consideration). The Court since has reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extra-schedular rating and elaborated that the Board is authorized to assign an extra-schedular rating when appropriate. Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Although the Board is required to obtain the Director's decision before awarding extra-schedular TDIU benefits, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages, 27 Vet. App. at 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a); 38 C.F.R. § 4.16(b)). Moreover, merely because the Board determined that extra-schedular consideration of the claim was warranted does not, in turn, ultimately mean the Board is obligated to grant this benefit. On March 14, 2019, the Court issued a panel decision in Ray v. Wilkie, 31 Vet. App. 58 (2019), which: 1) addressed the effect of the Board's referral of a case for extra-schedular consideration of a TDIU under 38 C.F.R. § 4.16(b) when the Board later reviews the Director's decision not to award an extra-schedular total disability rating; and 2) formulated a definition for "substantially gainful employment" under § 4.16(b). Here were the main takeaways: The Board's determination to refer a case for extra-schedular consideration under § 4.16(b) is a factual finding that does not bind the Board or require the Board to award an extra-schedular rating; however, if the Board denies entitlement to a TDIU after referral, the Board "must provide adequate reasons or basis for deviating from its earlier referral decision." "Substantially gainful employment" contains economic and noneconomic components; the economic component means "an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. The Court provided guidance as to the meaning of a veteran's ability to "secure and follow" such employment, noting that attention must be given to: the veteran's occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. As an initial matter, on the Veteran’s December 2017 application for increased compensation based on unemployability, he noted that he last worked full-time in October 2016 and that he became too disabled to work in June 2017 due to his service-connected seizures and non-service-connected stenosis of the lumbar spine. Turning now to the relevant evidence in this case at hand, VA medical treatment records in March 2012 show that the Veteran reported ongoing mini seizures that had been occurring once or twice a week over the past six to eight years. The Veteran reported that the seizures were accompanied by dizziness, confusion, and weakness in legs. At the May 2012 VA examination, the Veteran did not report major seizures but reported brief episodes that lasted about ten minutes at least six times per month. The examiner described the functional impact as causing him to be unable to work for brief periods of time. An October 2014 memorandum from the Veteran’s vocational rehabilitation counselor indicates that the Veteran was not ready for the vocational rehabilitation program at that time and will need to obtain additional services from mental health and medical professionals prior to being considered for employment due to the recurrent episodes of loss of consciousness. The Veteran’s vocational impairment was described as needing to work within a supportive environment that is sensitive to and knowledgeable of action to take when a seizure occurs. The June 2017 VA examiner described the functional impact of the Veteran’s seizures as weekly minor spells. The examiner noted that the Veteran never had major seizures. The Veteran reported minor psychomotor seizures characterized by brief transient episodes of random motor movements, hallucinations, perceptual illusions, abnormalities of thinking, memory or mood or autonomic disturbances. The January 2018 VA examiner noted there was no functional impact of the Veteran’s service-connected right middle finger scar. The January 2018 VA examiner described the functional impact of the Veteran’s seizures as having spells if on his feet for a long time. The examiner noted that the Veteran never had major seizures. The Veteran reported two or more minor psychomotor seizures over the past six months. The January 2018 examiner provided a February 2018 addendum noting that the Veteran has non-epileptic seizures several times a year which would cause a disruption of activity on those days producing impairment of function as the Veteran passes out with these episodes. The April 2018 examiner described the functional impact of the Veteran’s bilateral hearing loss as the Veteran states that he has difficulty when there are several people around because he is unsure if they are talking to him or not. The Veteran reported that the ringing is bothersome, but he is able to ignore it. The June 2019 VA examiner noted that the Veteran never had minor or major seizures but has had minor psychomotor seizures. The examiner described the functional impact of the Veteran’s seizures as changes in level of consciousness or alertness and cognitive impairment. Pursuant to the Board remand, the AOJ referred this case to the Director. In July 2020, after addressing the relevant evidence of record, the Director determined that the preponderance of the evidence does not support the contention that the Veteran’s service-connected disabilities alone result in occupational and social impairment with reduced reliability and productivity or worse. The Director further noted that the effects of the Veteran’s seizures do not prevent all forms of employment, including sedentary work. It was noted that he had 3 years of college education, and it was concluded that service connected disorders did not prevent him from suitable employment. The Board notes that the Veteran applied for Social Security Administration (SSA) benefits in June 2017. The January 2018 SSA decision noted that the Veteran’s limitations were not severe enough to be considered disabling according to SSA guidelines at that time. Additionally, the primary diagnosis was listed as the Veteran’s back disability and not the seizures. While the Board emphasizes that it is not bound by any SSA determination regarding disability benefits when rendering its own decision on entitlement to TDIU on an extraschedular basis, it does shed light on the Veteran’s ability or inability to work and which disabilities significantly impact that inability, given that the Veteran has both service- and nonservice-connected disabilities. In a rather recent decision, the Court noted that the VA has not explicitly defined the meaning of "sedentary employment." Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Id. at 149-150. Here, the Board envisions potential sedentary employment to encompass a wide variety of administrative or other forms of employment that would allow the Veteran to work with his disabilities. The Veteran’s DD 214 shows his military occupational specialty (MOS) was a Mess Management Specialist. The Veteran has worked a variety of jobs post-service, including janitorial and maintenance work, he was a stacker in a distribution center, security officer, production worker, overseeing construction sites, and he did administrative work at a VA Day Treatment Center. His varied work experience demonstrate that he is capable of learning new skillsets. Additionally, the Board is not relying solely on the VA examiners’ opinions but, rather, also on the available medical and other records in the file detailing the Veteran's continued employment with his seizures and the July 2020 Director Advisory opinion that the Veteran’s service-connected seizures are not of such severity so as to preclude the completion of physical and sedentary tasks. Because the Board finds the June 2019 VA examiner's opinion on the functional impact of the Veteran's service-connected disability in combination with the Director's determination regarding employability and the other relevant evidence in the file addressing this determinative issue persuasive, the Board is denying this extra-schedular TDIU claim. The evidence for versus against this claim is not in relative balance (equipoise), so there is no reasonable doubt to resolve in the Veteran's favor concerning this determinative issue. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, Associate Attorney 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.