Citation Nr: 21002986 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 15-32 423 DATE: January 19, 2021 ORDER A total rating based on individual unemployability (TDIU) on an extraschedular basis (38 C.F.R. § 4.16(b)) is granted from April 4, 2001 until March 20, 2013. FINDING OF FACT From April 4, 2001 onward, the Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW From April 4, 2001 until March 20, 2013, the criteria for an award of TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from March 1967 to February 1970. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a March 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing in September 2016; a transcript is of record. This matter was previously before the Board in February 2020 when it was remanded for additional development. This matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). The matter was referred to the Director of the Compensation Service. Entitlement to TDIU prior to March 20, 2013. The Veteran, via his representative, asserts entitlement to TDIU based on an extraschedular basis from February 3, 2003 onward. 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). In determining unemployability for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that “a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case.” Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016) (emphasis in original). Regardless of the method, “if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability.” Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will address the Veteran’s entitlement to an extraschedular TDIU prior to March 20, 2013 as he receives TDIU from March 20, 2013 onward. Prior to March 20, 2013, the Veteran’s service-connected disabilities included tension type headaches rated at 30 percent; degenerative joint disease of the shoulder rated at 20 percent; tinnitus rated at 10 percent; and noncompensable bilateral hearing loss. He has had a combined rating of 40 percent from February 10, 1995 onward. He has a combined rating of 50 percent from October 27, 2003. Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As the Veteran did not meet the schedular percentage threshold for the entire period that the Veteran claims TDIU, the Board referred his TDIU claim to the Director, Compensation Service for extraschedular consideration in its February 2020 remand. An August 2020 discussion recommended against granting TDIU on an extraschedular basis. In October 2020, the Director concluded that entitlement to extraschedular TDIU was not warranted as the Veteran’s service-connected disabilities would not prevent the ability to obtain or maintain employment. While the Director found entitlement was not warranted, the Director’s initial determination as to an extraschedular evaluation is not evidence. Wages v. McDonald, 26 Vet. App. 233, 239 (2015). Consequently, the Board must determine whether the Veteran’s service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran’s VA Form 21-8940 shows he last worked on April 4, 2001 as a school teacher. He has a college education. Additionally, he worked for the Oklahoma Department of Veteran Affairs in the maintenance department for approximately ten years. A March 1995 examination reported the effects of his service-connected headaches and right shoulder disability. His headaches occurred twice per week, but would also last between three and five days. The examiner reported that the Veteran may have had constant headaches. If he took medication immediately, they would resolve within four hours, otherwise they would last for days. He described the headaches as so severe that he would be comatose. For his shoulder, he had chronic pain and limited range of motion. The pain would wake him at night. A vocational assessment reported that while the Veteran would be able to perform sedentary work, he had had no such experience. He mostly worked in heavy manual labor, and briefly worked as a teacher. The counselor concluded that the Veteran’s transferable skills were limited to structural fabrication, installation, and repair. The counselor stated there are no sedentary positions with that skillset. He testified at a Board hearing in September 2016. At that time, he stated that he had previously performed church work as a volunteer in approximately 2003. He testified that at his prior employment, he regularly lifted scaffolding and heavy equipment and was no longer able to do so because of his service-connected shoulder disability. (Continued on the next page)   After review of the competent and probative evidence, the Board finds that the Veteran is entitled to TDIU on an extraschedular basis per 38 C.F.R. § 4.16(b) from April 4, 2001 until March 20, 2013. The Board recognizes the Veteran’s representative asserts TDIU from February 3, 2003 onward. However, the Veteran’s VA 21-8940 shows he last worked April 4, 2001. Also, the Board acknowledges the Director’s findings that he would not be prevented from sedentary employment. However, during this period on appeal, the Veteran’s headaches could last for several days where he was unable to perform any activity. His service-connected shoulder disability caused chronic pain and limited motion. The Veteran’s employment history indicates that he has had largely laborious employment. His service-connected shoulder disability would hinder any physically intensive position due to his difficulty with limited range of motion and lifting. His headaches, at times, would prevent the Veteran from performing any activity. As such, his headaches combined with his shoulder disorder, would not only prevent gainful employment in a physically intensive position that the Veteran has experience in, but also in a sedentary position because of his headache symptoms. Therefore, when resolving reasonable doubt in favor of the Veteran, entitlement to an extraschedular TDIU is granted from April 4, 2001 until March 20, 3013 based on the Veteran’s service-connected headaches and shoulder disability. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Garrett Morales, 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.