Citation Nr: 21061526 Decision Date: 10/04/21 Archive Date: 10/04/21 DOCKET NO. 19-17 912 DATE: October 4, 2021 ORDER An effective date of November 2, 2016, but no earlier, for the award of a total disability rating based on individual unemployability due to service-connected disabilities (hereinafter, TDIU) is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a TDIU prior to November 2, 2016, is remanded. FINDING OF FACT Resolving all doubt in the Veteran's favor, his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation consistent with his education and work history as of November 2, 2016. CONCLUSION OF LAW The criteria for an effective date of November 2, 2016, but no earlier, for the award of a TDIU 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 in the U.S. Army from April 1976 to October 1984. In a March 2020 decision, the Board of Veterans' Appeals (Board) found the issue of a TDIU raised by the record pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board granted entitlement to a TDIU effective November 1, 2019. The Veteran appealed the issue of entitlement to an earlier effective date for a TDIU to the U.S. Court of Appeals for Veterans Claims (Court). In May 2021, the Court granted the parties' Joint Motion for Partial Remand (JMPR), in which the Board's March 2020 Decision pertaining only to the denial of a TDIU prior to November 1, 2019, was vacated and remanded for further development. Entitlement to an effective date prior to November 1, 2019, for the award of a TDIU. In the Appellate Brief submitted by the Veteran's representative in May 2021, it is argued that a TDIU is warranted as of November 2, 2016. The Veteran's representative asserts that the Veteran meets the schedular rating criteria for a TDIU as of November 2, 2016. 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. 38 C.F.R. § 4.16(a). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. "While the term 'substantially gainful occupation' may not set a clear numerical standard for determining a TDIU, it does indicate an amount less than 100 percent." Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that "takes the claimant's case outside the norm" of any other Veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Id. The Veteran is considered unemployable if found that his or her service-connected disabilities result in being unable to secure or follow a substantially gainful occupation. 38 C.F.R. § 4.16. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court interpreted the phrase "unable to secure and follow a substantially gainful occupation" to have two components: one economic and one noneconomic. The economic component means 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, and the noneconomic component requires more than determining the presence or absence of employment producing income exceeding any particular threshold. The ultimate inquiry on the Veteran's ability to secure or follow that type of employment. The Court also provided that to determine whether a Veteran can secure and follow a substantially gainful occupation, attention must be given to the Veteran's history, education, skill, and training; whether the Veteran has the 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. Factors that may be relevant include, but are not limited to, the Veteran's limitations of lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations. Also, for consideration is whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the Veteran's limitations concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. While not a checklist, these are potentially relevant factors for consideration if raised by the evidence. The Veteran asserts that he is unable to obtain and maintain a substantially gainful occupation due to his service-connected disabilities. In the Veteran's application for a TDIU submitted in February 2020, the Veteran reported that he last worked full-time from January 2013 to May 2014 as a custodian. Prior to that he had worked full time as a maintenance worker from February 1995 to February 2009. He noted that he had completed high school and that he had vocational training in electrical small motors. His educational record reflects that he enrolled in training for small engine repair. From November 2, 2016, to November 1, 2019, the Veteran was service-connected for migraine headaches with a 30 percent evaluation, degenerative arthritis with limitation of movement of the cervical spine with a 30 percent evaluation, degenerative arthritis of the left knee with a 10 percent evaluation, right upper extremity radiculopathy with a 20 percent evaluation, pseudofolliculitis barbae with a 10 percent evaluation, right fifth toe amputation with scar with a noncompensable evaluation, left knee scars with a noncompensable evaluation, and cervical spine scar with a noncompensable evaluation. The Veteran's combined rating for the period from November 2, 2016, to November 1, 2019, is 70 percent, and his cervical spine disability and right upper extremity disability may be considered as one disability for the purpose of a single disability rated at 40 percent or higher. See 38 C.F.R. § 4.16(a)(2). As such, the Veteran meets the schedular rating criteria as of November 2, 2016. In February 2020, the Veteran submitted a private medical opinion, in which the physician found that it was more likely than not that the Veteran is unable to maintain substantially gainful employment due to the combined effects of his service-connected disabilities. The physician reported review of the Veteran's file, in addition to an interview with the Veteran. A recitation of pertinent evidence was provided, to include Social Security Administration findings of disability, VA examinations, and medical treatment records. The physician's opinion was based upon the finding that the Veteran would be required to take a minimum of one additional break three or more days per month outside of the standard lunch, morning, and afternoon breaks provided by most employers. If the Veteran were to try and work full time, he would end up missing three or more days of work per month or would need to leave early on three or more days per month due to his service-connected disabilities. The combined effects of his service-connected disabilities also impacted his ability to stay focused, and more than three days per month he would be unable to stay focused to complete simple repetitive-type tasks seven hours out of an eight-hour workday. In May 2021, the Veteran submitted a private vocational assessment, in which the vocational consultant found the Veteran to be totally occupationally disabled from all competitive employment due to his service-connected disabilities, which had been true since the date of his filing and is supported by his lack of any earnings reported since February 2008. The consultant reported a thorough review of the Veteran's file and provided a thorough recitation of pertinent evidence, to include Social Security Administration findings of disability, VA examinations, medical treatment records, as well as research findings. The consultant's conclusion was based predominantly on the finding that the Veteran's physical limitations due to his service-connected disabilities would make him unable to perform his prior work operating generators and lighting. Medical opinions from three separate physicians were noted to show that the Veteran was unable to perform no more than sedentary exertion. Additionally, the Veteran would be unable to attend work regularly, demonstrate sustained concentration for skilled work tasks or even simple sustained concentration, or tolerate the postural requirements included in climbing, balancing, standing, and bending. In this case, the record does not indicate that the Veteran was gainfully employed at any point since November 2, 2016. In addition, both the physician's and vocational consultant's rationalizations are consistent with the Veteran's record and indicate the Veteran's service-connected disabilities prevented him from maintaining substantially gainful employment since at least November 2, 2016. Both the physician and the consultant provided thorough and well rationalized analyses of their findings, which took into account pertinent evidence, such as Social Security Administration findings of disability, VA examinations, medical treatment records, lay statements, and the Veteran's education and work history. The question of employability is ultimately a legal one, not a medical one. Upon review, the Board finds the evidence shows the Veteran's service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation as of November 2, 2016. Therefore, a TDIU is warranted as of such date. In reaching such determination, the Board has resolved all doubt in favor of the Veteran, which has resulted in the partial award of the benefit sought on appeal. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND Entitlement to a TDIU prior to November 2, 2016. While the Veteran meets the schedular criteria for a TDIU as of November 2, 2016, he does not meet the schedular criteria for the period on appeal prior to November 2, 2016. As found in the March 2020 Board Decision, the appeal period for the Veteran's TDIU claim dates back to July 28, 2014. From July 28, 2014, to July 18, 2016, the Veteran was service-connected for degenerative arthritis with limitation of movement of the cervical spine with a 20 percent evaluation, degenerative arthritis of the left knee with a 10 percent evaluation, right upper extremity radiculopathy with a 20 percent evaluation, pseudofolliculitis barbae with a 10 percent evaluation, migraine headaches with a noncompensable evaluation, right little toe surgical scar with a noncompensable evaluation, and left knee scars with a noncompensable evaluation. Based on such, the Veteran's combined rating for July 28, 2014, to July 18, 2016, was 50 percent, and therefore, he does not meet the schedular criteria for a TDIU during this period. See 38 C.F.R. § 4.16(a). From July 18, 2016, to September 1, 2016, the Veteran was service-connected with the same disabilities and evaluations as the prior period, except the noncompensable evaluation for right little toe surgical scar was replaced with right fifth toe amputation with scar with a 100 percent evaluation due to convalescence. As he does not have any other single disabilities rated at 60 percent or higher, he does not meet the schedular criteria for consideration of a TDIU during this period. Id. From September 1, 2016, to November 2, 2016, the Veteran was service-connected with the same disabilities and evaluations as the above two periods; however, his right fifth toe amputation with scar was returned to a noncompensable evaluation following his convalescence. Thus, the Veteran's combined rating from September 1, 2016, to November 2, 2016, was 50 percent, and therefore, he does not meet the schedular criteria for a TDIU during this period. Id. Nevertheless, in light of the aforementioned vocational consultant's opinion submitted in May 2021 and the physician's opinion submitted in February 2020, the Board finds referral to the Director of Compensation Service for extraschedular TDIU consideration for the period prior to November 2, 2016, is warranted. Regardless of the favorable opinion granting a schedular TDIU as of November 2, 2016, it is important to note that in remanding the issue for referral to the Director of Compensation Service, the Board declines to take any position at this time as to whether the assignment of an extraschedular TDIU prior to November 2, 2016, is warranted. That is, the Board is not making any concrete findings that the extraschedular criteria are met. Rather, the Board is remanding the claim to allow the Veteran two bites at the proverbial apple. First, the Director of Compensation Service will have an opportunity to consider the case, and then if it is denied, the Board will have another opportunity to consider the issue. The matter is REMANDED for the following action: Refer the claim of entitlement to a TDIU prior to November 2, 2016, to the Director of Compensation Service for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). M. M. Celli Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Lutgens-Staley, 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.