Citation Nr: 21004468 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 09-47 686 DATE: January 27, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), on an extra schedular basis, for the periods from January 14, 2008 to December 9, 2009, and from July 1, 2010 to October 30, 2011 is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s service connected disabilities prevented him from obtaining and/or maintaining substantially gainful employment for the periods from January 14, 2008 to December 9, 2009, and from July 1, 2010 to October 30, 2011. CONCLUSION OF LAW The criteria for entitlement to TDIU, on an extra schedular basis, for the periods from January 14, 2008 to December 9, 2009, and from July 1, 2010 to October 30, 2011 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340. 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1953 to April 1955. These matters originate from a June 2008 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) confirming a 0 percent rating for the Veteran’s service-connected conversion reaction and denying a petition to reopen a previously denied claim for impaired vision in the left eye. In May 2020 the Board of Veterans’ Appeals (Board) inferred a TDIU claim from the Veteran’s January 2008 increased rating claim on the basis of a private vocational report submitted by the Veteran’s counsel in February 2020; the Board remanded the Veteran’s TDIU claim, directing that the issue be referred to the Director of Compensation Services (Director) for consideration of entitlement to TDIU on an extraschedular basis. The Veteran’s claim was referred in August 2020 and a decision from the Director obtained in October 2020. The Veteran’s TDIU claim now returns to the Board for adjudication. 1. Entitlement to a total disability rating based on individual unemployability, on an extra schedular basis, for the periods from January 14, 2008 to December 9, 2009, and from July 1, 2010 to October 30, 2011. VA will grant a TDIU where the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.340. 3.341, 4.16. If there is only one such disability, this 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 total disability rating may also be assigned on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b). Section 4.16(b) applies to Veterans who are unemployable by reason of service-connected disabilities but fail to meet the percentage standards set forth in section 4.16(a). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance, but it can review the record and determine whether an appropriate case is to be referred to the Director of Compensation Services for consideration of entitlement to TDIU on an extraschedular basis. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001); see Wages v. McDonald, 27 Vet. App. 233, 236 (2015); 38 C.F.R. § 4.16(b). The Veteran has been granted disability ratings of 100 percent for the periods from December 10, 2009 to June 30, 2010 and October 31, 2011 onward. Generally, if a Veteran has been granted a 100 percent disability rating, they are considered totally disabled and the issue of TDIU is moot. Holland v. Brown, 6 Vet. App. 443, 446 (1994), Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). However, there are exceptions to this rule. VA’s duty to maximize a claimant’s benefits includes consideration of whether his disabilities establish entitlement to special monthly compensation (SMC) under 38 U.S.C. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if the Veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on the basis of disabilities other than the disability that is rated at 100 percent. See Bradley 22 Vet. App. at 280; 38 U.S.C. § 1114(s). Therefore, in such cases entitlement to TDIU must be considered for periods where the Veteran has a disability rating of 100 percent so as not to preclude the possibility of SMC. The February 2020 private vocational report was completed by L.S., an expert vocational consultant. L.S. documented that the Veteran has not worked for approximately 40 years, and that he had previously been employed as a file clerk and taxi driver. The Board finds this generally consistent with statements made by the Veteran in December 1977, March 1978, and November 1981 that he stopped working in late 1960s or early/mid 1970s. L.S. opined that the Veteran is unemployable due to symptoms including: daily depression and anxiety; headaches, daily pain in the right shoulder; flares of worsened right shoulder pain; difficulty sustaining concentration due to headaches, pain, and depression; visual and auditory hallucinations; chronic sleep impairment due to pain, nightmares, and anxiety; and daytime fatigue secondary to poor sleep. The Veteran’s service-connected disabilities, consist of a conversion disorder, rated at 0 percent from April 8, 1955 to April 17, 2008, at 30 percent from April 18, 2008 to October 30, 2011, and at 100 percent from October 31, 2011 onward; a right clavicle disability rated at 30 percent from March 10, 2006 to December 9, 2009, 100 percent from December 10, 2009 to June 30, 2010, and at 30 percent from July 1, 2010 onward; a 10 percent rating for abdominal and shoulder scars for the period from August 16, 2016 to January 28, 2018, and at 0 percent thereafter; separate 0 percent ratings for his abdominal and shoulder scar in effective since April 1955 and February 2011, respectively; and laparotomy, traumatic brain injury (TBI), and erectile dysfunction, all rated at 0 percent. The Veteran’s combined disability evaluations during the period on appeal are 50 percent from January 14, 2008 to December 9, 2009; 100 percent from December 10, 2009 to June 30, 2010; 50 percent from July 1, 2010 to October 30, 2011; and 100 percent from October 31, 2011 onward. During the period from December 10, 2009 to June 30, 2010, the Veteran’s right clavicle disability was rated at 100 percent, leaving his conversion disorder rated at 30 percent, and his abdominal scar, laparotomy, right shoulder scar, TBI, and erectile dysfunction, all rated at 0 percent, for a combined evaluation of 30 percent. From October 31, 2011 onward the Veteran’s conversion disorder was rated at 100 percent. From October 31, 2011 to August 15, 2016, the Veteran’s disabilities aside from his conversion disorder were his right clavicle disability, rated at 30 percent, and his remaining disabilities rated at 0 percent, for a combined evaluation of 30 percent. From August 16, 2016 to January 28, 2018, the Veteran had an additional 10 percent rating for his abdominal and right shoulder scars, bringing his combined disability rating to 40 percent. A combined evaluation of 30 or 40 percent does not satisfy the schedular requirements for TDIU. 38 C.F.R. § 4.16(a). In May 2020, the Board found that referral for extraschedular consideration for the period from December 10, 2009 to June 30, 2010, and/or from October 31, 2011 onward, was moot. L.S.’ analysis of the Veteran’s unemployability rests on a combination of symptoms from all of the Veteran’s service-connected disabilities, particularly his conversion disorder and right clavicle disability. Entitlement to SMC where a single disability rating of 100 percent is already in effect requires a finding that TDIU is warranted solely on the basis of disabilities other than the disability rated at 100 percent. See Bradley 22 Vet. App. at 280; 38 U.S.C. § 1114(s). Therefore, the Veteran’s TDIU claim for the periods from December 10, 2009 to June 30, 2010 and from October 31, 2011 onward is moot: a 100 percent disability rating is already in effect for those periods, and the evidence does not suggest entitlement to a TDIU rating solely on the basis of his remaining service-connected disabilities. Thus, the periods on appeal with respect to the Veteran’s TDIU claim are those periods when less than a 100 percent disability rating, whether combined or as a result of a single disability, was in effect: January 14, 2008 to December 9, 2009 and July 1, 2010 to October 30, 2011. As discussed above, in October 2020 VA obtained an opinion from the Direct of Compensation Services as to the Veteran’s entitlement to TDIU on an extraschedular basis for the periods from January 14, 2008 to December 9, 2009 and July 1, 2010 to October 30, 2011. The Director’s substantive analysis of the Veteran’s disability picture for the above identified periods was as follows: “It was noted that the Veteran’s fractured right clavicle results in impairments that prevents some physical activities while his mental condition resulted in mild impairments. It was noted that the Veteran was a taxi driver and retired after he was assaulted multiple times in a year.” The Board finds the Director’s October 2020 opinion to be of minimal probative value. The opinion consists of a single conclusory sentence, with no explanation as to how the Director arrived at the conclusion that the Veteran’s mental health disability resulted in only “mild” impairments, or any explanation of what manner of impairments were considered with regard to the Veteran’s right clavicle disability. The Board assigns a higher degree of probative value to the February 2020 private opinion by L.S. The February 2020 opinion reflects a detailed description of both the history, and current severity of the Veteran’s various service-connected disabilities and their symptoms. L.S. provided substantive analysis of the effect the Veteran’s shoulder disability and conversion disorder would have on his ability to obtain and maintain gainful employment, stating: “[The Veteran] is more likely than not unable to perform work with the use of one upper extremity. Specifically, his limitations in reaching, increased pain with repetitive motions, and difficulty reaching overhead with the dominant right shoulder would likely erode most, if not all, of the available employment opportunities at the sedentary physical demand level, as many positions at this level require repetitive use of the bilateral upper extremities to complete tasks at a desk or work bench . . . If a worker attempted to perform work one-handed, they would experience a significant decrease in efficiency and productivity compared to a non-disabled worker. This inefficiency would render them unproductive to the point that they could not maintain gainful employment . . . constant pain . . . would likely interfere with his ability to sustain concentration on work tasks for at least two consecutive hours, as is required of all competitive employment . . . the Veteran’s conversion reaction . . . more likely than not [prevents] him from sustaining the focus and attention required of all competitive employment. Symptoms would likely distract him throughout the day and preclude him from sustaining concentration on work tasks for at least wo consecutive hours, as is required in competitive employment. This would cause him to be off task and unproductive during these lapses in concentration. As a result of this time spent off task, he would likely be unable to consistently produce a certain minimum amount of work throughout the workday, which would diminish his ability to meet employer expectations of pace and productivity. Memory and concentration impairments would further render him unable to attend to work tasks without supervision or redirection and would prevent him from following instructions In deciding a Veteran’s TDIU claim, consideration shall be given in all claims to the nature of any previous employment and the reason for termination, as well as the Veteran’s level of education, special training, and previous work experience. 38 C.F.R. § 4.16. Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In this regard, the board notes L.S.’ statement that any occupational skills the Veteran may have developed before he stopped working are now obsolete. Upon consideration of the totality of the record, the Board finds the evidence to be at least in equipoise as to whether the Veteran’s service connected disabilities prevented him from obtaining and/or maintaining substantially gainful employment for the periods from January 14, 2008 to December 9, 2009 and July 1, 2010 to October 30, 2011. Accordingly, the criteria for TDIU for the periods from January 14, 2008 to December 9, 2009 and July 1, 2010 to October 30, 2011 are met and the same is hereby granted. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. C. Sametshaw 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.