Citation Nr: 21068103 Decision Date: 11/09/21 Archive Date: 11/09/21 DOCKET NO. 15-14 839 DATE: November 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis from September 1, 2015 is granted. FINDING OF FACT From September 1, 2015, the Veteran's service-connected disabilities precluded him from securing or following substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis from September 1, 2015 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341. 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the Army from January 1978 to January 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's claim was remanded by the Board in June 2021 for a referral to the Director of Compensation Service. The claim was referred in July 2021. The Board finds that the RO has substantially complied with the June 2021 Board remand directive. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that new and relevant records were added to the Veteran's claims file after the issuance of the August 2021 supplemental statement of the case. See 38 C.F.R. § 19.31. However, the Board finds that a remand for agency of original jurisdiction consideration of the evidence is unnecessary and would not prejudice the Veteran given the favorable findings herein. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Entitlement to a TDIU on an extraschedular basis from September 1, 2015 The Veteran contends that his service-connected disabilities precluded him from obtaining and following substantially gainful employment. As determined by the Board in the June 2021 decision, it is noted that the Veteran's claim for a TDIU has been pending since May 5, 2011 as the issue was raised during the pendency of an appeal for increased ratings for his service-connected disabilities. See Rice v. Shinseki, 22 Vet. App. 447 (2009). It is also noted that in the June 2021 decision, the Board awarded the Veteran a TDIU from July 1, 2017, the date the Veteran met the schedular criteria pursuant to 38 C.F.R. § 4.16 (a). Prior to July 1, 2017, the Veteran does not meet the schedular percentage rating standards to be eligible for a TDIU. 38 C.F.R. § 4.16 (a). Nevertheless, where the percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the Veteran's background including his employment and educational history. 38 C.F.R. § 4.16 (b). In such as cases, rating boards are to submit to the Director of Compensation Service for extraschedular consideration. Id. Here, in June 2021, the Board referred the issue of entitlement to a TDIU on an extraschedular basis prior to July 1, 2017. In July 2021, the Director of Compensation Service denied the Veteran's claim. However, the Board is not bound by this decision and is prohibited from assigning probative weight to the decision. See Wages v. McDonald, 27 Vet. App. 233, 238 (2015). A total disability rating may be assigned when the schedular rating is less than 100 percent where a 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. In determining whether a Veteran is unemployable for VA purposes, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91 (1992); Faust v. West, 13 Vet. App. 342 (2000). A Veteran need not show 100 percent unemployability in order to be entitled to a TDIU. Robertson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). Additionally, in Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court), offered guidance in defining "unable to secure and follow a substantially gainful occupation." The Court found that 38 C.F.R. § 4.16 (b) has 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. The non-economic component includes consideration of the following: the Veteran's history, education, skill, and training; whether the Veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. The Board finds that the preponderance of the evidence supports a finding that the Veteran was precluded from obtaining or following substantially gainful employment from September 1, 2015 due to his service-connected disabilities. However, prior to September 1, 2015, the preponderance of the evidence indicates that the Veteran was earning more than a marginal income and was able to secure and follow substantially gainful employment. From May 5, 2011, the Veteran was service connected for a left knee disability rated as 20 percent disabling, bilateral foot calluses rated as 20 percent disabling, lumbar strain rated as 20 percent disabling, left knee instability rated as 10 percent disabling, and right knee disability rated as 10 percent disabling. The Veteran's resume received by the VA in September 2012 indicates that he was awarded a high school diploma in 1977. He started working at a poultry plant as a shipping supervisor in December 2002. His duties included unloading and loading and picking and staging products for shipping. He also powered lift trucks floor sweepers, pallet jacks, and forklifts. A VA examination was completed for the Veteran's lumbar strain and bilateral callus conditions in September 2012. The examiner noted that the Veteran worked as a supervisor at a poultry plant and has difficulty walking and climbing stairs due to his lumbar strain. However, he had not missed any days of work in the past year. The examiner also noted that the Veteran has difficulty walking due to his callus condition, but had not missed any days of work secondary to his foot pain in the past year. The Veteran was afforded a VA examination for his knee conditions in May 2013. The Veteran contended that he has a problem with stairs due to pain and his left knee giving out. The examiner, however, opined that the Veteran's knee condition does not impact his ability to work as the Veteran continued to work full time as a supervisor. An April 2015 Disabled Veterans Application for Vocational Rehabilitation noted that the Veteran was still employed full-time at the poultry plant earning $2600 per month. The Veteran noted that his knee and back issues reduced his ability to do his job. In April 2015, a Vocational Rehabilitation Counselor found that the Veteran had a serious employment handicap due to his service-connected disabilities, which created an impairment to employment. The Veteran's VA treatment records include a May 2015 primary care note where the Veteran complained of increasing knee pain and instability. It was noted that the Veteran works as a supervisor at a poultry plant and has difficulty doing his job duties due to worsening knee pain. Part of his job includes extensive walking, lifting boxes, loading trucks, and unloading pallets. The Veteran requested a knee brace for support. In June 2015, the Veteran submitted correspondence from his employer indicating that he had received "final written notice for failure to perform [his] job responsibilities as a shipping supervisor." The Veteran's supervisor stated that the Veteran has several medical issues that cause him pain. It was further noted that the Veteran is not able to stand for long periods of time or lift 40-pound boxes, interrupting his ability to be an effective leader. In a January 2016 Request for Hardship Determination, the Veteran stated that he was terminated from his job in September 2015, and he was unable to work due to his service-connected disabilities. In support of the Veteran's contentions, he submitted a January 2016 statement signed by Dr. M.M. noting that the Veteran is unable to work until he undergoes a left total knee replacement. Most recently, in September 2021, the Veteran submitted a Request for Employment Information in Connection with Claim for Disability Benefits, reaffirming that the Veteran was terminated from the poultry plant in September 2015 as his job performance suffered from his disability. The evidence indicates that from at least December 2002 to September 2015, the Veteran worked as shipping supervisor at a poultry plant earning $2600 a month. The Board finds that this income level is greater than 2015 poverty threshold for one person of $12,082, as defined by the United States Census Bureau. See https://www.census.gov/data/tables/time-series/demo/income-poverty/historical-poverty-thresholds.html. As such, the Board finds that the Veteran was not marginally employed and entitlement to a TDIU on an extraschedular basis prior to September 2015 is not warranted. See Ray, 31 Vet. App. at 73. The Board acknowledges that the Veteran was found to have a serious employment handicap in 2015 but the Vocational Rehabilitation Counselor. Additionally, the Board acknowledges that in May 2015 the Veteran experiencing increasing symptoms related to his service-connected disabilities resulting in a final warning from his employment. Nevertheless, the evidence shows that the Veteran continued to work despite increasing pain, and continued to earn an income well over the federal poverty threshold. Also, both the VA examiners in September 2012 and May 2013 opined that the Veteran's disabilities did not impact his ability to complete occupational tasks noting that the Veteran worked full time and did not miss any days of work due to his conditions. Accordingly, entitlement to a TDIU prior to September 1, 2015 is denied. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's claim, the doctrine does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 4.3. From September 1, 2015, the evidence indicates that the Veteran was terminated from his full-time employment as a shipping supervisor at the poultry plant as his work performance was affected by his service-connected medical conditions. The Veteran was no longer able to physically perform the duties required of a shipping supervisor including unloading, loading, picking, and staging products for shipping. As the Veteran had been employed in this position for well over a decade and only had a high school diploma at the time, he did not have any other skills or training that would transfer to a position that was not physically demanding. The Veteran's pain and physical limitations, including difficulty walking, standing, and climbing stairs precluded him from obtaining and following comparable employment. Furthermore, the January 2016 note from Dr. M.M. indicated that the Veteran would not be able to maintain employment until he underwent his left total knee replacement. Therefore, the Board finds that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. Accordingly, a TDIU on an extraschedular basis from September 1, 2015 is warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Hartford, 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.