Citation Nr: 21068501 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 18-05 783A DATE: November 10, 2021 ORDER A total disability rating based on individual unemployability (TDIU) prior to May 31, 2017 is granted. VETERAN'S CONTENTIONS The Veteran contends that his service-connected disabilities rendered him unable to obtain or maintain substantially gainful employment prior to May 31, 2017, entitling him to a TDIU. FINDING OF FACT The Veteran's service-connected disabilities precluded him from obtaining or maintaining a substantially gainful occupation prior to May 31, 2017. CONCLUSION OF LAW The criteria for a TDIU are met prior to May 31, 2017. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1956 to September 1959. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction is currently with the RO at the Appeals Resource Center (ARC). The Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) via videoconference in April 2019 and a transcript of the hearing has been associated with the claims file. This matter was previously before the Board at which time it was remanded for further development. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to May 31, 2017 A TDIU is granted where a veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. VA will grant a TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU benefits are granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such 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). In determining whether an appellant is entitled to a total disability rating based upon individual unemployability, neither the appellant's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.341 (a), 4.19. Factors to be considered are the Veteran's education, employment history, and vocational attainment. See Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). At the outset, the Board notes that the Veteran did not meet the schedular requirements for a TDIU prior to May 31, 2017. Service connection had been established for lumbar disc disease with spinal stenosis status post laminectomy rated as 10 percent disabling; radiculopathy, left lower extremity (femoral nerve), rated as 30 percent disabling; bilateral hearing loss rated as 10 percent disabling; tinnitus rated as 10 percent disabling; and laminectomy scar, low back, rated as 10 percent disabling; The Veteran did not have one disability rated at least 60 percent disabling; or two or more disabilities, with 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). Thus, the Veteran did not meet the threshold schedular requirement for an award of TDIU benefits under 38 C.F.R. § 4.16(a) prior to May 31, 2017. However, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities are to be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, rating boards should submit to the Director of Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the TDIU threshold percentage standards. Id. In response to an April 2021 Board remand, the RO referred the case to the Director of VA's Compensation Service for extraschedular consideration of a TDIU and the Director of Compensation Service issued a September 2021 memorandum that weighed against the Veteran's claim for extra-schedular under 38 C.F.R. § 4.16(b). However, although the Director's decision is important in that it allows the Board to consider entitlement to an extraschedular TDIU in this decision, it is not binding. 38 C.F.R. § 4.16; Wages, 27 Vet. App. at 233 (The Board is authorized to award extraschedular TDIU after obtaining the Director's decision. The Board is not bound by Director's decision in deciding whether to award TDIU). As the Director has addressed extraschedular consideration for TDIU under 38 C.F.R. § 4.16(b) in the first instance, the Board may now address whether a TDIU is warranted on an extraschedular basis prior to May 31, 2017. After reviewing the evidence of record, the Board finds that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities prior to May 31, 2017. In this regard, the record reflects that the Veteran earned a high school diploma. His DD Form 214 indicated that his military occupational specialty (MOS) was motorboat operator. Since service, the Veteran reported primary employment working as a maintenance mechanic. The Veteran also reported volunteering at a local Fire Department. Regarding his ability to obtain and maintain substantially gainful employment, the Veteran indicated on his January 2021 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, that his lumbar degenerative joint disease with stenosis and left lower extremity radiculopathy of the femoral nerve prevent him from securing or following any substantially gainful occupation. He further indicated that he last worked full time and became too disabled to work on December 31, 1996. Regarding the local Fire Department, the Veteran indicated in a February 2021 VA Form 21-4138, Statement in Support of Claim, that he still attends meetings but is physically unable to help because of his age and health. Turning to the medical evidence of record, a May 2017 VA examiner opined that the Veteran's hearing loss impacts ordinary conditions of daily life, including the ability to work, as the Veteran reported that it was hard to hear with noise and hard to hear conversations. A May 2017 VA examiner opined that the Veteran's thoracolumbar spine disability impacted his ability to work. The examiner reasoned that the thoracolumbar disability reduces the Veteran's ability to stand and walk for prolonged periods and his ability to do heavy lifting. Unfortunately, the medical evidence addressing the period prior to May 31, 2017 is sparse. However, the Board finds the Veteran's reports regarding difficulty hearing with noise; difficulty hearing conversations; reduced ability to stand and walk for prolonged periods, and reduced ability to do heavy lifting during the May 2017 VA examinations particularly relevant given that service connection for bilateral hearing loss, tinnitus, lumbar disc disease with spinal stenosis, and left lower extremity radiculopathy were granted effective December 15, 2016 based on these examinations. The Board notes that during the May 2017 examinations the Veteran also reported tinnitus since service and a history of back pain dating back to the late 1950s and early 1960s. The Board also finds relevant the Veteran's history of working primarily as a maintenance mechanic, which may reasonably be presumed to involve frequent conversation; prolonged periods of walking and standing; and heavy lifting. In light of the foregoing, and resolving all doubt in the Veteran's favor, the Board finds that the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities prior to May 31, 2017. The Veteran's entire occupational history has consisted of performing tasks which are physical in nature and his service-connected disabilities interfere with the ability to perform both physical and sedentary tasks. Accordingly, a TDIU is warranted on an extraschedular basis for the period prior to May 31, 2017. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.