Citation Nr: 21002643 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 15-26 646 DATE: January 14, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 3, 2019, on an extra-schedular basis is granted. FINDING OF FACT Prior to May 3, 2019, the Veteran’s service-connected disabilities have prevented him from securing or following a substantially gainful occupation. CONCLUSION OF LAW Prior to May 3, 2019, the criteria are met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from December 1968 to December 1972. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Offices (RO). In March 2018, the Veteran testified at a Travel Board hearing before the undersigned. A transcript of the hearing is of record. In October 2019, the Board remanded the claim of entitlement to a TDIU for additional development and consideration. The requested actions have been completed and the claim has been returned to the Board. Entitlement to a TDIU The Veteran is seeking entitlement to a TDIU prior to May 3, 2019. Specifically, he asserts that due to his disabilities he is unable to maintain employment since he must stand or walk for long periods of time. See VA Form 21-8940; see also March 2018 Board Hearing Transcript. VA will grant TDIU when the evidence shows that the veteran is precluded, by reason of service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.40, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 361 (1993). If there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where a veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b). Prior to May 3, 2019, the Veteran’s combined rating is 60 percent for his service-connected major depressive disorder, right knee, left knee, right ankle, and left ankle disabilities. The Board is prohibited from assigning TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim was referred to VA’s Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). However, the Veteran’s claim was forwarded to the Director of VA’s Compensation Service for extraschedular consideration. Memorandums dated in August and November 2020 are included in the record as to whether the Veteran is entitled to a TDIU on an extraschedular basis. Since the Director has provided a determination as to entitlement on an extra-schedular basis, the Board now has jurisdiction to decide the issue. The Board notes that it does so while placing no weight on the findings of the Director of Compensation Service, as that is a non-binding administrative determination and does not constitute medical evidence. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015). Unlike the criteria for an extra-scheduler rating under 38 C.F.R. § 3.321, the grant of an extra-scheduler rating for a TDIU under 38 C.F.R. § 4.16 is based on a subjective standard that seeks to determine if a particular veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC 6-96 (1996). Here, the Board notes the Veteran’s December 2014 VA Form 21-8940 and updated August 2020 VA Form 21-8940 show the Veteran last worked in the food industry until March 2009, and was employed as a baker or server. Prior to that, he indicated that he was working as a truck driver in the 1990s. The Veteran explained that, due to his disabilities, he was required to stand full time while at work, which became too painful for longer than 15 to 20 minutes. Consequently, it became impossible for him to continue to work as a cook, waiter, baker, bartender or any of his prior jobs. See id. Further, the Veteran testified during his March 2018 Board hearing that he could stand for 30 to 45 minutes, at most, before his legs would go numb, feel hard, and too painful. See March 2018 Board Hearing Transcript. In relevant part, the examiners who conducted the May 2014 VA Ankle Conditions Disability Benefits Questionnaire (DBQ) and May 2014 Knee and Lower Leg Conditions DBQ determined that the Veteran is unable to stand for prolonged periods of time or walk far on account of his musculoskeletal disabilities. Similarly, during the April 2015 VA Ankle Conditions and April 2015 VA Knee and Lower Leg Conditions DBQs, the VA examiners also noted difficulties standing or walking far due to his musculoskeletal disabilities. In the April 2019 VA Knee and Lower Leg Conditions DBQ, the VA examiner noted the Veteran had difficulty standing more than 10 minutes, was unable to squat, and was limited to walking for short distances, such as less than 300 feet. The April 2019 VA Ankle Conditions DBQ examiner determined the Veteran was limited to standing only 2 to 3 hours a day due to his disability. The issue of entitlement to a TDIU on an extra-scheduler basis was appropriately referred to the Director. In an August 2020 Memorandum, it was noted the Veteran was not unable to obtain or maintain gainful employment due to his service connected disabilities. Thereafter, in a November 2020 Memorandum, the Director found that the evidence of record does not establish the Veteran is unable to obtain or maintain substantially gainful occupation. Specifically, while it was conceded that the Veteran’s service-connected conditions cause functional limitations, the Director ultimately concluded that the preponderance of the evidence does not show that the Veteran is unable to obtain or maintain gainful employment due to his service-connected disabilities. (Continued on the next page)   In giving the benefit of the doubt to the Veteran, the Board finds that the Veteran has been unable to secure or maintain a substantially gainful occupation as a result of the service-connected disabilities. The medical evidence reflects the Veteran’s disabilities limit his physical capabilities, such as walking or standing, which is required for any job in the restaurant business. As all doubt is resolved in favor of the Veteran, the Board finds that the evidence supports a finding of a TDIU on an extra-schedular basis for the period prior to May 3, 2019. See 38 U.S.C. § 5107. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Berry, 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.