Citation Nr: 21004636 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 13-13 053 DATE: January 27, 2021 ORDER A total disability rating due to individual unemployability (TDIU) on an extraschedular basis prior to January 21, 2011 is granted, subject to the regulations governing the payment of monetary awards. FINDINGS OF FACT 1. The Veteran filed a claim for an increased rating for his service-connected asbestosis on October 08, 2009; his claim for a TDIU is part and parcel of that claim for an increased evaluation for his asbestosis (which was adjudicated in a January 2010 rating decision and appealed). 2. Prior to January 21, 2011, the competent evidence reasonably establishes that the Veteran’s service-connected disabilities were of such nature and severity to preclude him from obtaining or maintaining substantially gainful employment. CONCLUSION OF LAW Prior to January 21, 2011, the criteria for entitlement to a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.156(b), 3.157, 3.340, 3.400, 4.15, 4.16, 20.200, 20.201, 20.302, 20.1100. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1943 to November 1945. In a decision issued in July 2020, the Board granted entitlement to TDIU on a schedular basis from January 21, 2011 to August 28, 2014 and remanded the period prior to January 21, 2011 to the Director of Compensation Service for extraschedular consideration. As explained in that decision, the Veteran filed an increased rating claim for asbestosis on October 08, 2009. Although he subsequently filed a formal claim for TDIU, it was filed while the increased rating claims for asbestosis and posttraumatic stress disorder (PTSD) were still on appeal. Therefore, the issue of entitlement to TDIU was considered part and parcel of the claims for an increased evaluation, and the Board took jurisdiction over a claim for TDIU for the period prior to January 21, 2011. See Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU Total ratings based on individual unemployability, referred to as TDIU, may be assigned in the first instance by the Board or the Regional Office when the disabled person is determined to be unable to secure or follow a substantially gainful occupation as a result of service-connected disability or disabilities, provided that, if there is only one such disability, this disability shall be as ratable at 60 percent or more, and that, if there are two or more disabilities, here 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. See 38 C.F.R. § 4.16(a). For purposes of determining if the schedular threshold is met, “one disability” is defined as disabilities of one or both upper or lower extremities, including the bilateral factor; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system; multiple injuries incurred in action; or multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). In order to be awarded TDIU, the Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In cases where these percentages are not met, but the disabled person is unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities, the case should be submitted to the Director, Compensation Service, for consideration of extra-schedular TDIU. See 38 C.F.R. § 4.16(b). “Substantially gainful employment” is that 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). As further provided by 38 C.F.R. § 4.16(a), “Marginal employment shall not be considered substantially gainful employment.” The central inquiry 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Entitlement to a total disability rating due to individual unemployability (TDIU) on an extraschedular basis prior to January 21, 2011. The Veteran maintains that he is entitled to a TDIU prior to January 21, 2011. The Veteran reports he has been unemployed since 1980, and maintains that he retired from his last employment as a result of his service-connected PTSD and asbestosis, notwithstanding his schedular ratings and non-service-connected disabilities. From June 29, 2009 to January 20, 2011, the Veteran’s service-connected disabilities were PTSD, rated 30 percent disabling; and asbestosis, rated 30 percent disabling. The Veteran had a combined disability rating of 50 percent from June 29, 2009 to January 20, 2011. See 38 C.F.R. § 4.25. Therefore, he did not have a single disability rating of 60 percent or have a combined rating of at least 70 percent so as to meet the schedular criteria for TDIU. See 38 C.F.R. § 4.16(a). As noted above, the Veteran reports that he last worked full time in March 1980. He has since indicated that the service-connected disabilities which forced him to retire early and prevented him from following any substantially gainful occupation were, in relevant part, PTSD and asbestosis. See September 2012 VA Form 21-8940; October 2012 Correspondence; March 2013 Notice of Disagreement; May 2018 VA Form 21-8940. The Veteran reported his highest level of education obtained as high school with an apprenticeship as a boilermaker. He did not obtain any further education or training. After active duty, he was employed 40 hours per week as a boilermaker (heat and frost insulator) from 1946 to March 5, 1980. The Veteran has not worked since 1980. Submitted during the relevant period on appeal in support of his claims are VA treatment records, as well as private treatment reports, indicating that the Veteran sought treatment for his PTSD and asbestosis. Notably, the Veteran was routinely referred to a psychologist, E.M.T., for the purposes of evaluating his current psychosocial functioning and employability. In a May 2009 evaluation performed by psychologist, E.M.T., and received by VA in October 2009, the Veteran reported self-isolating as much as possible when he was employed because he had difficulty getting along with coworkers. His symptoms included: continuing to feel emotionally numb and void of feeling; self-isolation; bouts of irritability and outbursts of anger not always revolving around issue at hand; hypervigilance; and exaggerated startle[d] response. The Veteran’s symptoms that caused severe social, personal, and occupational impairment included: generalized anxiety with one to two panic attacks per month; flashback/intrusive thoughts; insomnia; overwhelming feelings of sorrow; withdrawn; and bouts of moderately severe depression. The evaluator opined that the Veteran was not a viable rehabilitation candidate or employable due to his “education, training, past work experience, and current level of symptoms pertaining to his service-connected problems, including his hearing.” In a June 2009 private treatment report, it was discovered that moderate airway obstruction was present and that the Veteran’s lung condition had worsened. According to the physician, “the extensive diaphragmatic plaques, calcified and noncalcified pleural plaques [are] consistent with asbestos related disease.” In a January 2010 rating decision, the Veteran was granted an increased rating for asbestosis from 0 percent to 30 percent, effective June 29, 2009, based on medical evidence showing that his lung condition had worsened due in part to a moderate loss of functional alveolar capillary surface. In September 2020, the Veteran’s claims file was administratively reviewed with a memorandum prepared for the Director of VA’s Compensation Service. It was requested that the Director render a decision as to whether a TDIU rating was warranted from June 29, 2009 to January 21, 2011, in accordance with 38 C.F.R. § 4.16(b). The memorandum noted that during the period in question, the Veteran had been service-connected for two disabilities, with a combined evaluation of 50 percent. It was also noted that the record suggested that the Veteran’s PTSD and asbestosis had contributed to his retirement. In terms of education and occupational background, the Veteran had completed high school and completed an apprenticeship as a boilermaker. His longest full-time job was a boilermaker (or heat and frost insulator) insulating boilers, tanks, and pipes from 1946 until he retired in 1980. The memorandum acknowledged that a psychologist, E.M.T., had performed an employment assessment of the Veteran in May 2009, and determined that the Veteran was not a viable rehabilitation candidate or employable due to his education, training, past work experience, and current level of symptoms pertaining to his service-connected problems. The memorandum concluded that the record reflected the Veteran would be restricted to the types of employment he could pursue considering his service-connected disabilities. The memorandum further opined that the Veteran was capable of no more than marginal employment due to his service-connected disabilities and concluded that marginal employment should not be considered substantially gainful employment. The memorandum recommended that TDIU on an extraschedular basis should be granted from June 29, 2009 to January 20, 2011. In a November 2020 advisory opinion, the Director of VA’s Compensation Service concluded that extraschedular entitlement to TDIU was not shown due to his service-connected disabilities prior to January 21, 2011. The Director considered all of the evidence and specifically noted that the Veteran last worked in 1980 doing heating/frost installation before retiring and had been receiving Social Security benefits since March 1981. It was additionally noted that the Veteran’s mental condition resulted in trouble sleeping and occasional flashbacks. The Director concluded that although the Veteran’s service-connected conditions had caused functional limitations, the preponderance of the evidence did not show that he was unable to obtain or maintain gainful employment due to his service-connected conditions. As such, in the November 2020 Supplemental Statement of the Case (SSOC), it was found that entitlement to extraschedular TDIU benefits was not established for the period prior to January 21, 2011. Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233, 239 (2015). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Board finds that the evidence reasonably establishes that the Veteran was unemployable due to his service-connected disabilities prior to January 21, 2011. The Veteran’s employment history prior to January 2011 was limited to working as a boilermaker, which ceased in 1980; and, he has not been substantially or gainfully employed since that time. The Veteran’s medical treatment records reflect that, prior to January 21, 2011, he exhibited the same symptoms which were subsequently determined to preclude his ability to engage in gainful employment. The record is clear that the Veteran had severe physical limitations that impacted his ability to obtain and maintain substantially gainful employment. The Veteran’s profession was in manual labor. Typical tasks include applying, removing, and repairing insulation on industrial equipment, pipes, ductwork, or other mechanical systems to help control noise and maintain temperatures. (Continued on the next page)   Accordingly, given the Veteran’s education, experience, and severity of symptoms, the Board resolves all reasonable doubt in the Veteran’s favor and finds that his service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation. Therefore, entitlement to an extraschedular TDIU rating from June 29, 2009 to January 21, 2011, is granted. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.16(b). A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Richardson, 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.