Citation Nr: 21002580 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 16-19 039A DATE: January 14, 2021 ORDER A total disability rating based on individual unemployability (TDIU), from May 10, 2013 to March 25, 2015, is granted on an extraschedular basis. FINDING OF FACT Resolving all reasonable doubt in his favor, the Veteran was unable to secure or follow substantially gainful employment prior to March 26, 2015, due to his service-connected diabetes mellitus. CONCLUSION OF LAW The criteria for an extraschedular TDIU, from May 10, 2013 to March 25, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1965 to July 1967. This case returns to the Board of Veterans’ Appeals (Board) after a remand to the agency of original jurisdiction (AOJ) in July 2019. The AOJ substantially complied with the Board’s remand instructions, and the claim is ready for further review. Stegall v. West, 11 Vet. App. 268, 271 (1998). TDIU The Veteran seeks an effective date earlier than March 26, 2015 for the award of a TDIU. After careful review, the Board finds that an extraschedular TDIU is warranted from May 10, 2013 to March 25, 2015. VA will grant a TDIU when the evidence shows that the Veteran is precluded from obtaining or maintaining substantially gainful employment consistent with his education and occupational experience due to his service-connected disabilities. 38 C.F.R. § 4.16. Substantially gainful employment is employment “which is ordinarily followed by the non-disabled 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). The central question 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). Non-service-connected disabilities and advancing age are not considered in the determination. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Under 38 C.F.R. § 4.16(a), if there is only one service-connected disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there must be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. If a claimant does not meet these percentage requirements, but is nevertheless unemployable due to service-connected disabilities, then the claim will be referred to the Director of the Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board cannot grant an extraschedular TDIU in the first instance. Anderson v. Shinseki, 22 Vet. App. 423, 428 (2009). However, once the Director’s review is complete, the Board has jurisdiction to review their decision, and it may still assign an extraschedular rating where appropriate. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). In this case, the AOJ granted a TDIU on a schedular basis, effective March 26, 2015. Prior to that date, the Veteran did not meet the TDIU percentage requirements under 38 C.F.R. § 4.16(a): he was only service-connected for one disability—diabetes mellitus—rated at 20 percent. In July 2019, the Board directed the AOJ to refer the claim to the Director of the Compensation Service for extraschedular consideration. On remand, the Director determined that “the overall evidence fails to support the contention that diabetes … prevented gainful employment prior to March 26, 2015.” See November 2020 Memorandum. The Board disagrees with the Director’s conclusion. The Veteran was reportedly last employed, as a sanitation worker/garbage collector, in 1994. According to his TDIU application, he worked in the sanitation field for 16 years before becoming too disabled to work due to various disabilities. He completed high school but has no other education or training. Information from the Social Security Administration (SSA) confirms that he has been receiving disability benefits “for osteoarthrosis and allied disorders” since 1995. The available SSA records do not mention diabetes mellitus. The AOJ attempted to obtain a full set of medical records from the SSA in 2015. However, the SSA determined that those records had been destroyed. See February 2015 Correspondence. VA treatment records reflect that, in May 2013, the Veteran had uncontrolled diabetes with suspected neuropathy. His primary care provider placed him on a restricted diet, prescribed various medications, and ordered additional testing. An April 2015 statement from “Dr. C.M.Q.,” a non-VA physician, also noted that the Veteran’s diabetic symptoms were poorly controlled. Dr. C.M.Q. indicated that his disabilities, including diabetes and diabetic complications, “significantly affect his ability to perform in a competitive work environment.” Ultimately, the question of unemployability is a legal determination, rather than a medical one. See Moore v. Shinseki, 555 F.3d 1369, 1373 (Fed. Cir. 2009). The record reasonably supports the inference that the Veteran’s diabetes was severe enough to produce unemployability prior to March 26, 2015, in light of his limited education and occupational history, which primarily involved physically demanding work. Accordingly, resolving all reasonable doubt in his favor, the Board finds that an extraschedular TDIU is appropriate for the period prior to March 26, 2015. Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The appeal is granted. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.Z. Wall, 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.