Citation Nr: 21067654 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 10-21 824 DATE: November 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability prior to August 12, 2009, on an extraschedular basis, is denied. FINDING OF FACT The Veteran's service-connected disabilities did not preclude him from obtaining or maintaining gainful employment prior to August 12, 2009. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to August 12, 2009 have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16a. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from March 1964 to December 1967. This matter comes before the Board of Veterans' Appeals (Board) from a September 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to an earlier effective date for a TDIU on an extraschedular basis was previously before the Board in October 2018, October 2020, and May 2021. In May 2021 specifically, the Board granted the Veteran's claim effective January 1, 2012, and referred the period prior to VA's Director of Compensation Service (Director) for extraschedular consideration. See 38 C.F.R. § 4.16(b). In August 2021, the RO, based on the Director's opinion, granted an earlier, August 12, 2009 effective date of the Veteran's TDIU on an extraschedular basis. As the Veteran has asserted unemployability prior to this date, his TDIU claim on an extraschedular basis returns to the Board for additional adjudication. TDIU prior to August 12, 2009 The Veteran asserts that he is unable to secure and follow a substantially gainful occupation as a result of his service-connected disabilities. The claim stems from the Veteran's prior claim for an increased initial rating for his service-connected low back disability, which has been in effect since November 26, 2008. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, 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). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As "sedentary" is defined as "[r]equiring or marked by much sitting " the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER'S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there 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. 38 C.F.R. § 4.16(a). Here, the Veteran does not meet the threshold schedular disability percentage requirement for TDIU consideration as a result of his service-connected disabilities prior to August 12, 2009. 38 C.F.R. § 4.16(a). Prior to that date the Veteran is in receipt of a 20 percent rating from November 26, 2008, and a 40 percent rating for the relevant period thereafter, for his low back disability. He is also in receipt of a 10 percent disability rating for tinnitus, and a noncompensable (zero percent) disability rating for left ear hearing loss. As the Board noted in its previous remand, however, the Veteran is not precluded form an extraschedular TDIU after referral to the Director. 38 C.F.R. § 4.16(b). In this case, the RO did not grant an extraschedular TDIU prior to August 12, 2009, based on an Advisory Opinion from the Director in August 2021 who determined that the evidence supported the contention that the Veteran's was prevented from obtaining and maintaining gainful employment as of the August 12, 2009 at the earliest, which is effective date of his service-connected cervical spine disability. The Board, however, is not bound by an adverse determination by the Director. Wages v. McDonald, 27 Vet. App. 233 (2015). Accordingly, the Board must determine whether the evidence supports a finding that the Veteran is entitled to TDIU under 38 C.F.R. § 4.16(b) prior to August 12, 2009. Military personnel records reflect the Veteran's military occupation specialty (MOS)/rating was that of Weather Observer. On a June 2016 application for unemployability he reported that pain from his low back disability and its associated radiculopathy prevented him from being able to work in real estate, his usual occupation. He also noted a number of other disabilities that were not service-connected during the relevant period on appeal, including the aforementioned cervical spine disability and its associated neurological impairments. The Veteran reported completing college level education and that he last worked full time in January 2007 in real estate teaching and as a real estate "rehabber." He reported no other education or training outside of the real estate industry. The Veteran presented for a VA spine examination in June 2009, at which time he was interviewed by the examiner who also reviewed the pertinent medical history and performed an examination. The Veteran was diagnosed at the time with degenerative joint disease, and physical examination showed the Veteran able to bend to 60 degrees with normal extension. The Veteran's cervical spine was normal. The examiner noted the Veteran's chronic pain and that he took Vicodin for medication. As to limitations in an occupational setting, the examiner opined that the Veteran's back pain would decrease mobility and that he would have a problem with lifting and carrying. In an April 2009 VA examination of the Veteran's hearing loss and tinnitus, the Veteran was noted to report difficulty hearing with background noise and when "determining the direction of sound." Treatment records are not in significant conflict with findings during VA examination. For example, treatment records from 2009 note the Veteran reporting constant back pain with flare-ups of pain several times per month requiring rest. The constant back pain was reported to be sharp, shooting, stabbing, throbbing, and burning with pain radiating to the legs. The Veteran also reported neck pain with limited range of motion, and that he was limited in his ability to stand, sit, walk, drive, and lift related to the chronic back pain, and that his neck pain made tasks involving head position difficult, including reading a computer monitor. A private physician in February 2009 opined that the Veteran's "severe arthritis" involving the cervical and lumbar spine, as well as hearing loss and Meniere's syndrome, rendered him too disabled to perform any meaningful work. Taken as a whole, the Veteran's symptoms do not suggest he was unable to obtain and maintain employment prior to August 12, 2009 due specifically to his low back pain and hearing loss/tinnitus. Given the Veteran's education and work history, symptoms reported by the Veteran, and the level of functional impairment as reported by VA examiners and treatment providers, the Board does not consider this level of impairment as one that would preclude employment. Of note, the Veteran's TDIU is currently effective the date of his award of service connection for a cervical spine disability, and the Veteran's own private physician noted that his cervical spine condition in addition to his low back disability and hearing loss/tinnitus precluded any meaningful employment. As noted above, in determining whether the Veteran is entitled to a TDIU, his nonservice-connected disabilities at the time may not be considered. While, prior to that date, the Board acknowledges that Veteran's low back disability still made it difficult to work, after review of the evidence of record the Board finds that the Veteran's functional limitations would not preclude employment that did not involve walking, standing, or lifting for extended periods of time. While the Veteran had some hearing loss, it was not so severe at this time to even warrant a compensable disability rating. Overall, the Veteran was qualified through education and experience for a variety of positions, many of which would not require strenuous physical activity. He was more than qualified for such positions given that he had college level education and training, as well as a work history in real estate that included non-strenuous administrative tasks, i.e., a "desk job." This type of work would also produce income above the poverty threshold. Based on the above, the Board finds that the evidence is against a finding that the Veteran as unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities prior to August 12, 2009. Thus, entitlement to a TDIU prior to August 12, 2009 on an extraschedular basis is denied. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Scarduzio, 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.