Citation Nr: 21061775 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 16-23 056 DATE: October 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) prior to January 7, 2019 on an extraschedular basis is denied. FINDING OF FACT Prior to January 7, 2019, the Veteran's service-connected disabilities do not preclude him from securing and following substantially gainful employment. CONCLUSION OF LAW The criteria for a TDIU prior to January 7, 2019 on an extraschedular basis have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341(a), 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1968 to November 1970. This matter is before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This issue was remanded most recently in June 2021 for further development. 1. Entitlement to a TDIU prior to January 7, 2019 on an extraschedular basis Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. Individual unemployability must be determined without regard to any non-service-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran's case outside the norm with respect to a similar level of disability under the rating schedule. 38 C.F.R. §§ 4.1, 4.15; Van Hoose, 4 Vet. App. at 363. The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994). Nevertheless, even if the Veteran does not meet the threshold minimum percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director of Compensation Service for extraschedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). Thus, despite the Veteran not meeting the percentage requirements for TDIU, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would have justified a TDIU. 38 C.F.R. §§ 3.341 (a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). 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). Pursuant to the Board remand, the agency of original jurisdiction (AOJ) referred this case to the Director of Compensation Service. In June 2021, after addressing the relevant evidence of record, the Director determined that the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment prior to January 7, 2019. The Board notes however, the Director's decision is not evidence, but is rather akin to a de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. See Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). A TDIU determination is left to the Board's discretion, not a medical examiner's discretion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects a disability, or disabilities, have upon a person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Similarly, the Veteran is competent to report symptoms that he experiences which are observable through his senses. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Veteran has been granted TDIU effective from January 7, 2019. Prior to this, he was service connected for posttraumatic stress disorder (PTSD) with major depressive disorder evaluated as 30 percent; diabetes mellitus evaluated as 20 percent; right lower extremity peripheral neuropathy evaluated as 10 percent; and left lower extremity peripheral neuropathy evaluated as 10 percent. His combined service-connected evaluation was 40 percent effective October 14, 2011, 60 percent effective December 17, 2012, and 70 percent effective January 7, 2019. The VA treatment records during the applicable period show the Veteran was seen for both service-connected and non-service-connected disabilities. The Social Security Administration (SSA) records show the Veteran's primary disability to be his back condition which is not a service-connected disability and his secondary disability to be his service-connected psychiatric disabilities. In March 2016, Dr. J.B. detailed a psychological evaluation of the Veteran. Dr. J.B. diagnosed the Veteran with PTSD, MDD, and persistent depressive disorder. The examiner reported that the Veteran "has been significantly impaired, socially and occupationally, since at least his last regular employment in 2005. Dr. J.B. reported that the Veteran's interpersonal relationships are frequently strained, and his depression hinders his ability to engage in most activities outside of the home. Dr. J.B. reported, "[t]hat depression, combined with his constant irritability punctuated by unprovoked outbursts of anger, make it difficult for him to adapt to novel, stressful situations and thus render him incapable of maintaining substantial employment." In an April 2016 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran reported that he was unable to secure or follow a substantially gainful occupation due to his service-connected diabetes mellitus, peripheral neuropathy of the lower extremities, and his PTSD. He reported that he was unable to obtain his commercial driver's license due to his service-connected diabetes mellitus. He also indicated that he was awarded SSA disability benefits in 2005. He indicated that he completed 3 years of high school and received his GED while in the military and he had no other education or training since he became too disabled to work. Prior to becoming too disabled to work, the Veteran reported a work history of a car salesman, and a pest technician; as well as a shift leader/supervisor of a Terminal company. Prior to January 7, 2019, the medical evidence from the SSA documents that the Veteran would not be able to consistently stand/walk or sit in a normal eight-hour day without resting for at least 2 hours. Additionally, he had limitations in lifting more than 10 to 20 pounds. He was not shown to have any mental limitations. The SSA decision noted that the Veteran's limitations were not severe enough to be considered disabling according to SSA guidelines at that time. Although the Board emphasizes that it is not bound by any SSA determination regarding disability benefits when rendering its own decision on entitlement to TDIU on an extraschedular basis, it does shed light on the Veteran's ability or inability to work and which disabilities significantly impact that inability. In a recent decision, the United States Court of Appeals for Veterans Claims (Court) noted that the VA has not explicitly defined the meaning of "sedentary employment." Withers v. Wilkie, 30 Vet. App. 139 (2018). Until VA provides such a definition, "the meaning and relevance of the term will have to be discerned on a case-by-case basis from the medical and lay evidence presented and in light of each veteran's education, training, and work history." Id. at 149-150. Merriam-Webster online dictionary defines "sedentary" as (a) "doing or requiring much sitting" or (b) "not physically active." https://www.merriam-webster.com/dictionary/sedentary. The Board employs this definition in the current analysis. The Board observes that although there are physical limitations due to the Veteran's back, during the applicable period, the Board notes that the back is not service connected. Further, the preponderance of the evidence does not show that the service-connected disabilities PTSD, diabetes, and peripheral neuropathy to his bilateral lower extremities prohibited him from obtaining or maintaining gainful employment prior to January 7, 2019. Indeed, there was no indication from the treatment records or a description of functional impairment in the VA examination reports, that the Veteran's service-connected disabilities alone precluded him from obtaining and retaining substantially gainful employment due to his PTSD, diabetes and bilateral lower extremity disabilities. Indeed here, the Board envisions potential sedentary employment to encompass a wide variety of administrative or other forms of employment that would allow the Veteran to work with his disabilities especially in light of his experience, education, and work history. The Veteran has worked as a pest technician and car salesman; further he has worked in leadership position for a terminal company. His work experience demonstrated that he was capable of learning new skill sets prior to January 7, 2019. The Board does not doubt that the Veteran's service-connected disabilities had an effect on his employability prior to January 7, 2019, as evidenced by his combined disability rating. The weight of the evidence, however, does not support a finding that his service-connected disabilities precluded his participation in substantially gainful employment. As such, the Board finds a TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) is not warranted. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.