Citation Nr: 21004731 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 06-03 695A DATE: January 28, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) on an extraschedular basis from September 5, 2002, is granted. FINDING OF FACT The evidence is in relative equipoise as to whether the Veteran’s service-connected disabilities prevented her from securing or following gainful employment as of September 5, 2002. CONCLUSION OF LAW Resolving all reasonable doubt in favor of the Veteran, the criteria for the assignment of TDIU on an extraschedular basis beginning September 5, 2002, are met. 38 U.S.C. §§ 5103A, 5107 (2012); 38 C.F.R. 3.102, 3.400, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1987 to October 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Atlanta, Georgia. The Board acknowledges that the Veteran has a separate appeal for increased ratings for lumbar strain, lupus, left lower extremity radiculopathy, right lower extremity radiculopathy, and tinea versicolor. This appeal is being processed under the Appeals Modernization Act (AMA) and will be addressed in a separate decision. With respect to the issue of a TDIU, this matter was previously before the Board in October 2017, wherein the Board remanded the issue for adjudication by the RO to reevaluate the issue as the Veteran’s disability picture had changed. The matter returned to the Board in October 2018 and the Veteran was granted TDIU on a schedular basis from May 13, 2003 to January 28, 2011. In the same decision, the Board remanded entitlement to a TDIU on an extraschedular prior to May 13, 2003 and from January 30, 2011 to August 15, 2011. In a November 2020 rating decision, the RO granted entitlement to a TDIU from January 30, 2011 to August 15, 2011 and denied entitlement to a TDIU prior to May 13, 2003. The matter has returned to the Board for adjudication. This appeal has been advanced on docket pursuant to 38 C.F.R. §§ 20.900(c) (2017). 38 U.S.C. §§ 7107(a)(2) (West 2012). The Veteran asserts that she is unable to work due to her service-connected conditions, from September 5, 2002. In June 2014, the Veteran submitted a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. However, the Board finds that the issue of entitlement to a TDIU was raised earlier during the pendency of the Veteran’s September 2002 claim for an increased rating for her gynecological problems, and service connection for weak bladder, bilateral carpal tunnel syndrome, anemia, and lupus. As such, the Veteran’s claim for TDIU is part and parcel of the claim under Rice v. Shinseki, 22 Vet. App. 447, 455 (2009). Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). In the alternative, if the Veteran does not meet the percentage requirements, but is nevertheless rendered unable to obtain or maintain substantially gainful employment by reason of one or more service-connected disabilities, the matter must be submitted to the Director of Compensation Service for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, Compensation Service. Bowling v. Principi, 15 Vet. App. 1 (2001). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Substantially gainful employment is “that 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 (1991). The Board must consider whether the Veteran’s service-connected disabilities rendered the Veteran unable to secure or follow a substantially gainful occupation. The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the examiner is not on whether the Veteran is unemployable due to his or her service-connected disabilities, but the functional impairment caused solely by service-connected disabilities. See VBA Fast Letter 13-13 (June 17, 2013). When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Here, the Veteran does not meet the schedular criteria for a TDIU prior to May 13, 2003, pursuant to 38 C.F.R. § 4.16(a) as she is currently combined to be 60 percent disabling but does not have one disability ratable at 60 percent or more. From September 5, 2002, she is rated at 30 percent for gynecological problems (to include vaginitis, bacterial vaginosis, and salpingitis with abnormal PAP smears and dyspareunia), 20 percent for lumbar sprain, 10 percent for painful scars status post breast reduction surgery and hysterectomy, 10 percent for lupus, 10 percent for right upper extremity carpal tunnel syndrome, and 10 percent for left upper extremity carpal tunnel syndrome. She has noncompensable evaluations for weak bladder associated with fibroids, status post myomectomy, deep and nonlinear right hand second degree burn scar, anemia, tinea versicolor, residuals of abdominal mass of the left lower quadrant, status post excision, and fibroids, status post myomectomy. An advisory opinion from the Director of Compensation Service was received by the VA in October 2020. The Director conceded that the Veteran’s service-connected conditions do cause functional limitations, but the preponderance of the evidence does not show that the Veteran is unable to obtain or maintain gainful employment due ot her service-connected conditions. The Director found that that overall evidenced failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented employment and as a result, entitlement to extraschedular TDIU benefits prior to May 13, 2003 was not established. The Veteran’s representative submitted a private vocational assessment in June 2018. The Veteran’s file was reviewed by J.C., MRC, CRC, CLCP, a vocational consultant and expert. A telephonic interview was conducted with the Veteran in May 2018. The Veteran confirmed in the interview that she has experienced symptoms from her service-connected conditions for many years that have impacted her activities of daily living and quality of life. The Veteran reported that since at least September 2002 she has experienced symptoms and limitations that have gradually worsened in severity with daily fatigue, achiness, joint pain, dizziness, headaches, chest pain, and blurry vision due to lupus. Additionally, the Veteran endorsed incapacitating flare-ups of lupus symptoms that occur at least four times per year and render her bedridden for seven to ten days. She also had daily fatigue, nausea and dizziness due to anemia. She had constant back pain, could not sit more than five minutes at a time, and could walk more than ten minutes without needing to stop and rest due to her lumbar condition. Due to her bilateral carpal tunnel syndrome, she cannot reach above shoulder-height, does not write or type on a computer, occasionally drops items due to poor grip, and cannot lift or carry more than five pounds. She also stated that she had daytime voiding of three times per hour, changed absorbent materials at least six times per day, soiled herself causing her to need to change clothing at least three times per week, and extreme drowsiness during the day due to poor sleep from frequent night awakenings due to her weak bladder. Furthermore, she reported constant vaginal burning, pressure to urinate, and pelvic pain due to her gynecological conditions. She also had difficulty concentrating and focusing on tasks due to fatigue, drowsiness, and chronic pain. She endorsed difficulty with memory and was easily confused due to lupus. The counselor outlined the Veteran’s work history and noted that following her military service, she was employed by the government as a test monitor where she worked until 1999. Thereafter, she was employed in a family business, working on and off as administrative support from approximately 2000 to 2008. However, from early 2000 through early 2001, she worked approximately three hours per week and was able to take time off as needed due to her service-connected conditions. The Veteran’s lupus and anemia caused her to be constantly fatigued and exhausted which in turn impaired her ability to make decisions. She was in constant pain and unable to sit for more than five minutes at a time from her lumbar strain. She also required frequent breaks due to her back pain and fatigue from lupus. Her bilateral carpal tunnel syndrome caused her hands to go numb which made driving to work and reaching, handling, and gripping items at work challenging. She resigned from her position at the family business in September 2001 to pursue a degree, but it took her eight years to complete her bachelor’s degree due to difficulty with memory and required formal academic accommodations. She returned to employment at her family business to work on a part-time basis and worked around three to five hours a week. She also worked in May 2008 part-time at Value Village as a cashier but was terminated in December 2008 for poor work performance after many warnings from her supervisors. The family business was too much for her husband to maintain and closed at the end of 2008. The vocational expert noted that although the Veteran worked off and on for her family-owned business from 2000 to 20008, and for Value Village from May 2008 to December 2008, she has not made earnings above the poverty thresholds since she last worked for the federal government in 1999. These jobs are not considered substantially gainful employment. Based on the medical records and telephone interview with the Veteran, the counselor stated that in her vocational opinion, it is more likely than not that she has been unable to maintain substantially gainful employment since at least September 2002 due to her lupus, weak bladder, lumbar sprain, anemia, gynecological problems, and bilateral carpal tunnel syndrome. She stated that she only considered the Veteran’s service-connected conditions in rendering her opinion. The Board affords great probative weight to the findings of the vocational assessment report from June 2018. Specifically, the rehabilitation counselor carefully and extensively recited to the relevant evidence, demonstrating that she had reviewed the Veteran’s medical records, history, statements, and assertions. In assigning high probative value to this opinion, the Board notes that the counselor reviewed the records and fully supported her conclusions with specific citation to the record and expertise in rehabilitative counseling. Based on the foregoing, with consideration of all factors bearing on the issue, to include her employment history and educational and vocational attainment, the Board finds that the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities in combination preclude her from engaging in substantially gainful employment. As such, the Board finds that the criteria for TDIU on an extraschedular basis are met from September 5, 2002, the date the VA received her claim for an increased rating for her gynecological problems, and service connection for weak bladder, bilateral carpal tunnel syndrome, anemia, and lupus. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Kim, 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.