Citation Nr: 21068683 Decision Date: 11/12/21 Archive Date: 11/12/21 DOCKET NO. 20-04 831 DATE: November 12, 2021 ORDER Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) is granted from January 31, 2008, through August 7, 2019. FINDING OF FACT The Veteran's service-connected disabilities have prevented him from obtaining and maintaining a substantially gainful occupation from January 31, 2008, through August 7, 2019. CONCLUSION OF LAW The criteria for entitlement to an extraschedular TDIU have been met from January 31, 2008, through August 7, 2019. 38 U.S.C. §§ 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.19 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from August 1964 to August 1967. In May 2021, the Veteran testified at a Board Videoconference Hearing before the undersigned Veterans Law Judge. In a June 2021 Decision, the Board remanded the issue of entitlement to an extraschedular TDIU prior to August 8, 2019, referring it to VA's Director of Compensation Service for extraschedular consideration. 1. Entitlement to an extraschedular TDIU prior to August 8, 2019 Schedular TDIU may be assigned when the schedular rating is less than total and it is found that the disabled person is unable to obtain or maintain a substantially gainful occupation as a result of either: (1) a single service-connected disability ratable at 60 percent or more; or (2) two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). To warrant referral for extraschedular consideration, the record must reflect some factor which takes the case outside the norm. The sole fact that the Veteran was unemployed or had difficulty obtaining employment is not enough to warrant a referral; rather, the ultimate question is whether the Veteran's combined service-connected disabilities, despite falling short of the schedular criteria for TDIU consideration, nevertheless prevented him from being capable of the mental and physical acts required by employment. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. 1 (2001); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran is currently service connected for: (a) diabetic peripheral neuropathy (DPN) of the right upper extremity (40 percent since August 8, 2019); (b) DPN of the left upper extremity (20 percent since August 8, 2019); (c) DPN of the right lower extremity (sciatic nerve) (10 percent from January 31, 2008; 20 percent since August 8, 2019); (d) DPN of the right lower extremity (femoral nerve) (20 percent since August 8, 2019); (e) DPN of the left lower extremity (sciatic nerve) (10 percent from January 31, 2008; 20 percent since August 8, 2019); (f) DPN of the left lower extremity (femoral nerve) (20 percent since August 8, 2019); (g) bilateral hearing loss (20 percent from November 16, 2011; 30 percent since November 29, 2013); (h) tinnitus (10 percent since November 16, 2011); (i) coronary artery disease (30 percent from January 31, 2008; 10 percent from May 8, 2010; 30 percent since November 29, 2013); (j) posttraumatic stress disorder (30 percent since August 8, 2019); (k) diabetes mellitus type II with erectile disfunction and hypertension (20 percent since January 31, 2008); (l) cerebrovascular accident left-sided infarct causing voiding dysfunction (100 percent temporary total from May 7, 2010; 10 percent from December 1, 2010; 20 percent since August 8, 2019); and (m) degenerative arthritis status post left shoulder surgery for dislocation (20 percent from October 1, 1967; 20 percent since September 12, 2019). See February 2020 Codesheet. The current, combined evaluation for compensation is: 20 percent from October 1, 1967; 70 percent from January 31, 2008; 100 percent from May 7, 2010; 60 percent from December 1, 2010; 70 percent from November 16, 2011; 80 percent from November 29, 2013; and 100 percent since August 8, 2019. See February 2020 Codesheet. The Veteran seeks a TDIU prior to August 8, 2019. See May 2021 Board Hearing transcript. However, based on the individual and combined ratings for his service-connected conditions, the Veteran does not meet the percentage standards for schedular TDIU prior to August 8, 2019, as he does not have at least one disability ratable at 40 percent or more during the period on appeal (notwithstanding his temporary convalescence following his stroke, spanning May 7, 2010, through November 30, 2010). See February 2020 Codesheet; 38 C.F.R. § 4.16(a). Thus, the question before the Board is whether the Veteran is entitled to extraschedular TDIU prior to August 8, 2019. 38 C.F.R. § 4.16(b). In an April 2008 Statement, the Veteran reported that he had retired from USPS in November 2000 before opening a small business which he was forced to sell because he was unable to work and unemployable. An April 2008 VA joints examination revealed that the service-connected left shoulder manifested in: range of motion loss; a popping sensation with stiffness; a burning sensation usually every morning lasting for several minutes to an hour; and flare-ups of sharp pain throughout the night lasting for a few moments. The Veteran reported taking pain medication three or four times a day and having retired from USPS in 2000. The July 2008 VA diabetes mellitus and peripheral nerves examinations revealed that the service-connected diabetes mellitus type II with erectile dysfunction and hypertension and service-connected DPN manifested in: fatigue; an episode of ketoacidosis requiring a hospital visit and treatment; numerous hypoglycemic episodes that he is able to self-treat; associated dyslipidemia; DPN symptoms for more than 10 years in the legs and feet (pins and needles, burning, paresthesias, weakness, fatigue, and constant pain all day that increases with activity such that he has to restrict his activity level); and associated erectile dysfunction. The Veteran reported taking medication at least twice per day and following a restricted diet; he also reported having retired from USPS in 2000 before opening his own auto repair business for 5 years. The October 2008 VA heart examination revealed that the service-connected coronary artery disease manifested in: angina; fatigue; dyspnea at rest and with exertion; having to use a CPAP with dyspnea at rest; getting dyspnea on exertion after approximately 100 yards of walking; feeling like a weight is on his chest when he gets angina; and difficulty getting a deep breath every time he exerts himself or has stress. The Veteran reported taking medications for his symptoms. In a June 2011 Congressional Correspondence, the Veteran reiterated that he had to give up his business because he was unable to work. In a November 2013 VA Form 21-8940, the Veteran reported that: his service-connected conditions prevented full-time employment; he last worked full-time in 2006 and left due to disability; and he completed one year of college along with a training in postal service accident investigation. In a November 2014 Statement, the Veteran reported that he sold his automotive business in 2008 due to his health issues. Subsequently in November 2014, VA mailed a development letter asking the Veteran to complete a VA Form 21-4185 regarding his self-employment at his automotive business; however, the Veteran did not return a completed form, or otherwise specify the dates and earnings, for that period of self-employment. In an October 2017 Notice of Disagreement with an attached Brief, the Veteran's representative requested TDIU effective 2006. During the May 2021 Board Hearing, the Veteran testified that: he last worked full-time around 2007 as an owner of an automobile business; he had completed one year of college; he had breathing issues related to his service-connected heart condition before his 2010 stroke, which only worsened those issues; and he was unable to work because of the symptoms from his service-connected heart and BPN conditions. The Veteran and his representative ultimately asked that the TDIU be granted effective, at least, to when the Veteran had his service-connected stroke in 2010. As stated above, in a June 2021 Decision, the Board remanded the issue herein, referring it to VA's Director of Compensation Service for extraschedular consideration. The September 2021 Advisory Opinion denied the claim; however, the Board finds that the rationale gave more probative value to the VA examiners' indications of functional loss than to the Veteran's indications of function loss, even for lay-observable symptoms and manifestations that the Veteran is competent to report. Layno v. Brown, 6 Vet. App. 465 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Notably, the Board is not bound by the September 2021 Advisory Opinion Memorandum's denial of the claim. To the contrary, the Board finds that, although the left shoulder, coronary artery disease, diabetes mellitus type II with erectile dysfunction and hypertension, and DPN of the bilateral lower extremities (sciatic nerve) were the only service-connected disabilities effective at the time of the initial TDIU claim in 2008, their manifestations are severe enough to have prevented the Veteran from obtaining and maintaining a substantially gainful occupation since 2008. Specifically, the Board highlights that these service-connected disabilities have, as described above, resulted in several limitations including of the upper body (left shoulder), the lower body (bilateral lower extremities), mental capacity (numerous hypoglycemic episodes, which can produce symptoms affecting concentration, persistence, and pace); and activities of daily life (range-of-motion tasks, walking for more than 100 yards, difficulty breathing upon exertion and even at rest). The Board finds these mental and physical functional losses to be work-preclusive because the Veteran's limitations would more likely than not require accommodations, excessive absenteeism or breaks, or unscheduled absences that would more likely than not exceed those allowed by typical employers and adversely impact his ability to perform and maintain pace and production demands required at any level of substantial gainful employment. Notably, as described above, the Veteran was subsequently service connected for several other disabilities that also adversely impact his physical and mental capabilities to obtain and maintain a substantially gainful occupation; as such, the evidence confirms that the Veteran's work-preclusive, service-connected conditions have persisted and worsened throughout the appeal period, further supporting the claim. (Continued on the next page) Finally, despite the above-noted discrepancies regarding whether the Veteran stopped working full-time through self-employment in 2006, 2007, or 2008, the Board finds that an effective date of January 31, 2008, is appropriate because it aligns with the effective dates of service connection for the majority of the conditions for which TDIU was granted and because the Veteran did not return the requested VA Form 21-8940 for his automobile business or otherwise specify (with months and years) the dates of employment and earnings for the self-employment period. Woods v. Gober, 14 Vet. App. 214, 224 (2000) (although VA has a duty to assist the Veteran in substantiating his claims, that duty is not a one-way street and it is important that he make efforts to assist VA in gathering evidence relevant to his claim); Hurd v. West, 13 Vet. App. 449, 452 (2000). Thus, the Board grants extraschedular TDIU from January 31, 2008, through August 7, 2019. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.