Citation Nr: 21070040 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 12-24 233A DATE: November 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis from December 1, 2012 to July 11, 2013 is granted. Entitlement to extraschedular TDIU prior to December 1, 2012 is denied. FINDINGS OF FACT 1. Resolving reasonable doubt in favor of the Veteran, the Veteran was not able to obtain or retain substantially gainful employment due to his service-connected disabilities from December 1, 2012 to July 11, 2013. 2. The Veteran was able to obtain or retain substantially gainful employment prior to December 1, 2012. CONCLUSION OF LAW 1. From December 1, 2012 to July 11, 2013, the criteria for entitlement to extraschedular TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). 2. Prior to December 1, 2012, the criteria for entitlement to extraschedular TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1965 to September 1967. In February 2021, the Board remanded the Veteran's claim to the Agency of Original Jurisdiction (AOJ) for further action consistent with the Board's remand directives. Specifically, the Board remanded for referral to the Director of the Compensation Service for extraschedular consideration of entitlement to TDIU. The Board notes that in the same order, the Board granted TDIU on a schedular basis from July 12, 2013. The claim is back before the Board for further appellate proceedings. Total disability will be considered to exist where there is present any impairment of mind and body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation because of service-connected disabilities, provided that the Veteran meets the schedular requirements. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one disability that is ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). "Substantially gainful employment" is that employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). "Marginal employment shall not be considered substantially gainful employment." 38 C.F.R. § 4.16(a). In determining whether a veteran can secure and follow a substantially gainful occupation, the Court in Ray v. Wilkie directed the Board to consider the following factors: (1) the veteran's history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities required by the occupation at issue; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. 31 Vet. App. 58, 73. The Veteran does not meet the schedular criteria for TDIU prior to July 12, 2013. However, as stated above, the Board referred the claim to the Director for entitlement to extraschedular TDIU in February 2021. See 38 C.F.R. § 4.16(b). The Director denied entitlement to an extraschedular TDIU prior to July 12, 2013. See September 2021 VA Memo. The Director's decision is akin to a de facto AOJ decision, and the Board must conduct de novo review of this decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015). Prior to July 12, 2013, the Veteran was service connected for the following disabilities: (1) lumbosacral strain, rated at 20 percent from January 27, 2011; (2) left knee degenerative joint disease, rated at 10 percent from January 27, 2011; (3) tinnitus, rated at 10 percent from January 27, 2011; (4) right knee lateral instability, rated at 20 percent from January 20, 2011; (5) mild right knee residuals of a meniscotomy, rated at 20 percent from January 20, 2011; and (6) bilateral hearing loss and right knee scar, both rated as non-compensable from January 27, 2011. Hence, the percentage requirements outlined in 38 C.F.R. § 4.16(b) are not met. The Veteran filed an application for a TDIU rating in May 2013. He contends that all his service-connected disabilities render him unable to obtain and retain substantially gainful employment. See May 2013 VA Form 21-8940. The Veteran indicated that he last worked on November 30, 2012 where he was employed in maintenance from May 1979 to November 2012. His highest level of education is one year of high school, with no additional training. Id. As a result, the Board finds that the Veteran worked continuously from May 1979 to November 30, 2012. Thus, the narrow issue before the Board is whether the Veteran has been unable to secure or follow a substantially gainful occupation because of his service-connected disabilities from December 1, 2012, or the day after he last worked, until July 11, 2013, or the day before entitlement to schedular TDIU. The Veteran's primary profession was maintenance, or janitorial work, until he became too disabled to work in November 2012. See May 2013 VA Form 21-8940. A June 2011 VA examiner noted that the Veteran's knee condition resulted in decreased mobility, with the resulting work problem of increased absenteeism. See June 2011 VA examination report. A February 2019 VA examiner opined that the Veteran's knee condition limited him from carrying objects that weigh 10 or more pounds or doing activities that require walking on irregular surfaces and repetitively going from sitting to standing and vice versa, climbing stairs or ladders and is limited to sedentary or semi sedentary type activities, and should not participate in high impact activities. See February 2019 VA examination report. The October 2020 examiner reported the Veteran's back disability would limit him from carrying or lifting objects of greater than 10 pounds, climbing stairs, and going from sitting to standing. See October 2020 VA examination report. He would also have difficulty lifting objects or bending forward. Id. The Board also observes that the Veteran's bilateral hearing loss and tinnitus would also impact his ability to work. The November 2014 examiner reported that according to the Veteran, it is difficult to hear conversations, especially with noise in the background. See November 2014 VA examination report. Notably, the Veteran's description regarding the nature and severity of his disabilities has remained reasonably constant since his reported last date of employment, or November 30, 2012. Importantly, a July 12, 2013 VA examiner specifically noted that the Veteran's knee condition would preclude him from his usual job in maintenance, or as a janitor. See July 2013 VA examination report. The examiner noted that the Veteran could do other sedentary jobs. However, considering the Veteran's sole work history in maintenance since 1979, as well as his limited education and training, the Board finds that other employment outside of his work in maintenance is not an option for the Veteran. The responsibility for making the ultimate TDIU determination is placed on the adjudicator and not a medical examiner. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). A medical examiner's role is limited to describing the effects of disability upon the person's ordinary activity. See Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). The Veteran is competent to testify as to facts he personally observed or described; this includes recalling what he personally felt, saw, smelled, heard, or tasted. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds the Veteran and the VA medical examiners probative as to the Veteran's functional limitations attributable to his service-connected disabilities. Therefore, the Board finds that the Veteran's service-connected disabilities as likely as not prevent him from obtaining and maintaining gainful employment. This is the case from December 1, 2012, or the day after he last worked, until July 11, 2013, or the day before TDIU is already in effect. Accordingly, resolving all doubt in his favor, the criteria for extraschedular TDIU have been met from December 1, 2012 to July 11, 2013. See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 9, 55-57 (1990). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Katie Poe, 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.