Citation Nr: 21062478 Decision Date: 10/07/21 Archive Date: 10/07/21 DOCKET NO. 17-63 120 DATE: October 7, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's service-connected disabilities preclude gainful employment consistent with her education and occupational experience. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis 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 from December 1990 to May 1993. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2014 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in October 2019 and April 2021, on which occasions the claim was remanded. Entitlement to a TDIU on an extraschedular basis. Based on a review of the record, the Board finds that the Veteran's service-connected endometriosis and chronic constipation have rendered her unable to secure and follow a substantially gainful occupation. It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25. Generally, to be eligible for a TDIU, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When the Veteran's service-connected disabilities fail to meet the applicable percentage standards enunciated in § 4.16(a), an extra-schedular TDIU is for consideration if there is at least suggestion he is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). The Veteran indicated that she was last employed as a home health aide in June 2007, but asserted that she lost 100 percent of her work time due to illness. Similarly, she indicated that she was employed as an Albuquerque Public Schools teacher's assistant from August 2006 to September 2006, but again asserted that she lost 100 percent of her work time due to illness. She additionally indicated that she was employed as a gym assistant from May to July 2005, an information receptionist from May to July 2004, and an information specialist from April to May 2004. (2/11/2019, VA 21-8940, p. 2). Regarding education, she was awarded a Bachelor of Arts in Government, and Law and Society by New Mexico State University in 1989. She also received a Juris Doctor (J.D.) from University of New Mexico in 1995. (3/29/2017, Academic Transcripts, p. 1, 3). While the Veteran does have a J.D., it does not appear that she was ever licensed to practice law. (2/21/2017, VA Form 28-1902w, p. 3). Service connection is currently in effect for endometriosis with vaginismus, pelvic pain, endometrial lesions on bladder, and chronic constipation (50 percent from August 29, 2016, and 30 percent from July 7, 1997), and a laparoscopy scar (zero percent from November 6, 2012). Her combined rating is 50 percent from August 29, 2016, and 30 percent from July 7, 1997. The Veteran does not meet the threshold percentage criteria for a TDIU under 38 C.F.R. § 4.16(a). However, in the Board's April 2021 decision, it was found that there was sufficient evidence that the Veteran's service-connected disabilities impact her ability to work to warrant referring the claim to the VA's Director of Compensation Service (herein Director) for extraschedular consideration. In a July 2021 advisory opinion, the Director found that entitlement to an extraschedular TDIU was not warranted. In rendering this decision, the Director acknowledged that "the Veteran's service-connected disabilities [] cause function limitations and impacts her ability to work[;] however, the preponderance of the evidence fails to show that the Veteran's service-connected disabilities alone causes her inabilities to obtain and maintain gainful employment." ( 7/15/2021, VA Memo, p. 1-2). While the Board is required to obtain the Director's decision before awarding extra-schedular TDIU benefits, the Board is not bound by the Director's decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015); 38 C.F.R. § 4.16(b). Accordingly, the Board must determine whether the evidence supports a finding that the Veteran is entitled to a TDIU. At the outset, the Board notes that the Veteran is in receipt of Social Security Disability. The Social Security Administration (SSA) found that the Veteran is disabled due to affective disorders and substance addiction disorder as of November 2004. (2/28/2019, Medical Treatment Record, p. 11). The SSA noted the Veteran's diagnosis of endometriosis, but indicated that "[i]t is not clear what level of pain she is now experiencing." (2/28/2019, Medical Treatment Record, p. 187). Similarly, the Veteran applied for Veteran Readiness and Employment (VR&E) benefits; however, a Rehabilitation Panel Review found that she "was not feasible for work based on the 'longevity and severity of her interpersonal deficits.'" The Rehabilitation Panel found that her "mental health issues will continue to attribute to her interpersonal difficulties that render her infeasible for employment." (7/5/2017, VRE Correspondence, p. 3). While it is clear that the primary cause of the Veteran's current inability to secure employment is her nonservice-connected mental health disabilities, the Board must consider whether the Veteran's service-connected disabilities alone render her unable to secure and follow a substantially gainful occupation. In this regard, during a March 2019 VA gynecological conditions examination, the examiner noted that the Veteran experiences moderate constant pain with intermittent flares of severe pain. The examiner opined that "[t]he [V]eteran's pelvic pain, which is constant, makes it difficult for her to concentrate or to be able to do anything physical. Prohibits physical and sedentary employment." (3/13/2019, C&P Exam, p. 2, 6). Likewise, in a March 2019 intestinal conditions examination, a VA examiner opined that her bloating and constipation cause stomach pain and discomfort which prohibits physical and sedentary employment. (3/13/2019, C&P Exam, p. 4). The Board additionally notes that while the Director proffered a negative TDIU opinion, a VA Decision Review Officer (DRO) conducted an administrative review of the Veteran's claims file and recommended that entitlement to TDIU on an extra-schedular basis be granted. (6/28/2021, Correspondence, p. 3). Based on the strength of the DRO's recommendation and medical evidence indicating that the Veteran experiences constant pain and discomfort, the Board finds that her service-connected disabilities render her unable to secure and follow a substantially gainful occupation. As such, a TDIU is warranted on an extraschedular basis. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.