Citation Nr: 21070025 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 15-14 666 DATE: November 22, 2021 ORDER A total rating based on individual unemployability (TDIU) on an extraschedular basis is granted from March 1, 2013 until December 1, 2015. FINDING OF FACT From March 1, 2013 onward, the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW From March 1, 2013 until December 1, 2015, the criteria for an award of TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from May 1966 to May 1968. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board videoconference hearing in April 2018; a transcript is of record. This matter was previously before the Board in May 2021 when it was remanded for additional development. This matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). The matter was referred to the Director of the Compensation Service. Entitlement to a TDIU on an extraschedular basis. The Veteran asserts entitlement to TDIU based on an extraschedular basis. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability 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, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). 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, 72-73 (2019). The Court has stated that "a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case." Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016) (emphasis in original). Regardless of the method, "if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability." Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will address the Veteran's entitlement to an extraschedular TDIU prior to December 1, 2015 as he receives TDIU from December 1, 2015 onward. Prior to December 1, 2015, the Veteran's service-connected disabilities include coronary artery disease rated at 30 percent, tinnitus rated at 10 percent, and noncompensable ratings for erectile dysfunction and scars. He had a combined rating of 30 and 40 percent. Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As the Veteran did not meet the schedular percentage threshold for the entire period that the Veteran claims TDIU, the Board referred his TDIU claim to the Director, Compensation Service for extraschedular consideration in its May 2021 remand. An August 2021 discussion recommended against granting TDIU on an extraschedular basis. In September 2021, the Director concluded that entitlement to extraschedular TDIU was not warranted as the Veteran's service-connected disabilities would not prevent the ability to obtain or maintain employment. While the Director found entitlement was not warranted, the Director's initial determination as to an extraschedular evaluation is not evidence. Wages v. McDonald, 26 Vet. App. 233, 239 (2015). Consequently, the Board must determine whether the Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment (work that is more than marginal, which permits the individual to earn a "living wage"). Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran's VA Form 21-8940 reported that while he last worked full time in April 2007, his disabilities did not affect his full-time employment until 2012. He has a high school education. He was employed as a machine operator for John Deere from September 1965 until April 2007. He testified that he can only exercise on an elliptical for five minutes and loses his breath after bending over or walking. His 2014 examination reported that his activity was limited by noncardiac symptoms. His METs level was consistent with golfing, mowing the lawn, and digging. However, his spouse also reported that he would breathe heavily. His private physician provided a statement that he had limited activities because of his coronary artery disease. He had bypass surgery in 2012. After review of the competent and probative evidence, the Board finds that the Veteran is entitled to TDIU on an extraschedular basis per 38 C.F.R. § 4.16(b) from March 1, 2013 until December 1, 2015. Prior to March 1, 2013, he received a 100 percent rating. March 1, 2013 is the earliest date the Veteran is service connected for his disabilities when he does not also have a 100 percent rating. Also, the Board acknowledges the Director's findings that he would not be prevented from employment. However, during this period on appeal, the Veteran's had bypass surgery, along with limitation of activities due to his coronary artery disease. His disability would prevent employment in any position that was not sedentary. Although the Veteran's disability would not prevent sedentary employment, a review of the non-economic factors weighs against a finding that the Veteran could engage in sedentary employment. The claims file does not show that the Veteran would be suitable for such a role. Nor is there any indication that he has any experience in comparable position. Previously, the Veteran worked as machine operator for over 40 years. He does not have experience in a sedentary position that would be appropriate for one with his level of coronary artery disease. (Continued on the next page) Therefore, when resolving reasonable doubt in favor of the Veteran, entitlement to an extraschedular TDIU is granted from March 1, 2013 until December 1, 2015 based on the Veteran's service-connected coronary artery disease. Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board G. Morales, 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.