Citation Nr: 21003355 Decision Date: 01/21/21 Archive Date: 01/21/21 DOCKET NO. 09-01 606 DATE: January 21, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to January 26, 2010, pursuant to 38 C.F.R. § 4.16(b) is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s service connected back disability precluded him from obtaining and maintaining substantially gainful employment prior to January 26, 2010. CONCLUSION OF LAW The criteria for a TDIU prior to January 26, 2010, pursuant to 38 C.F.R. § 4.16(b) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1969 to June 1972 and August 1973 to September 1990, including service in the Republic of Vietnam. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from a February 2008 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA) that granted service connection for right lower extremity neuropathy and assigned an initial 10 percent rating. The issue of entitlement to TDIU is raised as part of the December 2006 initial rating claim for right lower extremity neuropathy. Rice v. Shinseki, 22 Vet. App. 447 (2009). In June 2013 and January 2016, the Board remanded these issues for additional development. In June 2017, the Board, in pertinent part, denied entitlement to TDIU prior to September 1, 2012. The Veteran appealed these issues to the United States Court of Appeals for Veterans Claims (Court). Before the Court issued a decision, the parties agree to a Joint Motion for Remand (joint motion). It vacated the June 2017 Board decision. In February 2019, the Board referred this issue to the Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Entitlement to TDIU prior to January 26, 2010, pursuant to 38 C.F.R. § 4.16(b) Prior to January 26, 2010, the Veteran was service connected for recurrent low back strain, rated at 40 percent; diabetes mellitus type II, rated at 20 percent; right lower extremity neuropathy, rated at 10 percent; sinusitis status post septorhinoplasty, rated at zero percent; irritable bowel syndrome, rated at zero percent; eczema, rated at zero percent; and folliculitis, rated at zero percent. The maximum combined rating for the Veteran’s service-connected disabilities prior to January 26, 2010 was 60 percent. Thus, the criteria for consideration of a schedular TDIU have not been met for the period prior to January 26, 2010. If a Veteran fails to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), an extraschedular rating is to be considered by the Director of Compensation Service if the evidence suggests that such Veteran is unable to obtain or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. § 4.16(b). The Court has held that the Director’s extraschedular decision is one of fact, not one of opinion, discretion, or policy, and is reviewable by the Board on a de novo basis. The Board may assign an extraschedular rating when appropriate, and is only precluded from assigning an extraschedular rating “in the first instance.” Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996). With respect to the term “in the first instance,” the Court clarified that the Board may assign extraschedular ratings when reviewing either a grant or a denial of an extraschedular rating by the Director. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015). Pursuant to the requirements of 38 C.F.R. § 4.16 (b), the Veteran’s case was submitted by the AOJ to the VA Director of Compensation Service for extraschedular consideration. In August 2020, VA recommended granting TDIU on an extraschedular basis due to service-connected recurrent low back strain and right lower extremity neuropathy, effective November 13, 2007. The August recommendation noted that the Veteran’s last date of employment was November 12, 2007. On his March 2008 application for TDIU, the Veteran stated that he was on short-term disability at the time, which would end on May 19, 2009. Employment information received from Philips Healthcare on June 9, 2008 confirmed that his last day of employment was November 12, 2007. It was noted that he had four years of college education and was on long term disability, which began May 19, 2008 and was scheduled to end on December 5, 2013. The August 2020 recommendation referenced an Award Letter from the Social Security Administration dated April 5, 2008 showing that Mr.[REDACTED] was considered disabled and began receiving benefits in May 2008. Occupational impact caused by his back condition included decreased mobility, problems lifting and carrying, and pain, as shown on spine examination dated January 15, 2008. An opinion from Dr. C.G., M.D. dated March 17, 2008 noted that the Veteran can perform no more than sedentary work on an occasional basis upwards of a maximum of four hours a day due to his degenerative disc disease with stenosis. Dr. C.G, added that he will require pain management, which would prohibit him from driving a company vehicle, working at heights or doing any excessive bending, twisting, and lifting. In a subsequent statement dated October 22, 2008, Dr. C.G. stated that the Veteran will be on permanent pain management and his limitations will be more severe, as his mobility may regress in the future. In October 2020, the Director issued a decision stating that the Veteran was not entitled to a TDIU rating on an extraschedular basis prior to January 26, 2010 and provided a statement of reasons for the decision. However, the Board finds that the Director did not adequately address the favorable evidence outlined above, nor did the director provide a summary of the evidence considered. Additionally, a VA Memorandum dated August 24, 2020 to the Director of Compensation Service from the Veterans Service Center Manager at the Atlanta Regional Office recommended that TDIU be granted to this Veteran on an extraschedular basis. Therefore, the Director’s opinion is entitled to zero probative weight. As such, a TDIU rating on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b) is warranted. Jennifer White Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Mohammad Mahmoudi, 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.