Citation Nr: 21071917 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 13-33 989 DATE: December 1, 2021 ORDER A total disability based on individual unemployability (TDIU) on an extraschedular basis prior to July 7, 2008 is denied. FINDING OF FACT For the period prior to July 7, 2008, the Veteran's service-connected disabilities did not render him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW For the period prior to July 7, 2008, the criteria for an award of a TDIU on an extraschedular basis were not 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 served on active duty from August 1982 to November 1982 and from January 2005 to December 2006, with additional service in the Army National Guard. In August 2017, the Veteran testified before the undersigned Veterans Law Judge (VLJ) at a videoconference hearing. A transcript of the hearing has been associated with the claims file. In July 2021, the Board remanded the current claim for additional development. Entitlement to TDIU on an extraschedular basis prior to July 7, 2008. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § § 4.16(b). For the period prior to July 7, 2008, the Veteran was service-connected for cubital tunnel syndrome with left ulnar neuropathy (rated at 20 percent), a right shoulder disorder (rated at 10 percent), lumbar spondylosis (rated at 10 percent), anxiety disorder (rated at 10 percent), and umbilical hernia (rated at 0 percent). As there is not one disability rated at 60 percent or higher, or one disability rated at 40 percent or more and combined rating of at least 70 percent, the threshold minimum percentage rating requirements for the assignment of a TDIU have not been met. The Board notes, however, that even though the Veteran does not meet the schedular criteria for consideration of a TDIU, consideration must still be given as to whether a TDIU may be granted on an extraschedular basis. 38 C.F.R. § 4.16(b). Entitlement to a TDIU on an extraschedular basis must be determined in the first instance by VA's Director of Compensation Service. Id. The claim has already been referred to the Director of Compensation Service (Director) for extraschedular consideration. After consideration of the evidence of record, the Director determined that entitlement to extraschedular TDIU benefits was not established. Although VA is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. § 511(a), 7104(a); 38 C.F.R. § 4.16(b)). The record indicates that the highest level of education the Veteran has obtained is one year of college. The record also reflects that the Veteran worked as a federal mechanic/technician from November 2003 to May 2007. See April 2014 Social Security Administration (SSA) Medical Treatment records. The Veteran underwent VA examinations for his lumbar spine and right shoulder disorders in February 2007. The same VA examiner conducted both examinations. The examiner noted that the Veteran had symptoms of right shoulder tenderness with very mild impairment. The examiner also noted that despite the Veteran's complaints of back pain, there was no impairment of the lower back at that time. The Veteran reported that he was primarily doing office work, at the time, and was able to perform this work without difficulty. He also reported that he did not have any problems with his daily activities. Private treatment records from January 2007 to July 2008 document the Veteran's continuous reports of shoulder and back pain and symptoms consisting of lumbar/shoulder pain, lumbar muscle spasms, and lumbar restricted range of motion. These records also indicate that the Veteran was restricted from performing strenuous activities, to include stooping, bending, or twisting. The Veteran, however, was not restricted from moderate walking. See April 2014 SSA Medical Treatment records. VA treatment records from August 2007 to July 2008 document that the Veteran had psychiatric symptoms consisting of hyperarousal, difficulty with crowds, increased agitation/irritability, flashbacks, anxiety, severe depression, suicidal ideations, fatigue, sleep problems, concentration problems, nightmares, and mood swings and that these symptoms caused considerable distress and life interference. With regard to his musculoskeletal issues, the Veteran reported chronic back pain with difficulty with activities of daily living and he utilized a cane and back brace. He also demonstrated pain/neuralgia of the left elbow and full range of motion of the bilateral shoulders with full strength on abduction and flexion. During this time, the Veteran appears to have worked off and on as a mechanic and had difficulty finding employment because no places were hiring. He reported that he feared that he could not handle the stress of a full-time 8-hour a day job. The Board acknowledges the Veteran's reports that he last worked as a technician/mechanic in September 2005. See April 2013 TDIU Application. This statement, however, is contradicted by the more probative Social Security Administration (SSA) records that document the Veteran's reports that he last worked full time as a mechanic/technician in May 2007. Notably, on his application for a TDIU the Veteran also reported that he earned $35,000 as a federal technician in 2007. As such, the Board affords the statement that the Veteran last worked in September 2005 little to no probative value. The Board also acknowledges the December 2010 SSA disability determination, which shows that the Veteran was awarded SSA disability as early as May 2, 2007 based on late effects of cerebrovascular disease and essential hypertension. As this determination is based on the Veteran's nonservice-connected disabilities, it is not probative of whether the Veteran's service-connected disabilities, alone, would render him unable to secure and follow a substantially gainful occupation. After reviewing the foregoing evidence, the Board finds that, for the period prior to July 7, 2008, entitlement to a TDIU on an extraschedular basis is not warranted. Namely, while the record shows that, as of May 2007, the Veteran was unemployable due nonservice-connected heart/hypertension disorders, the record did not reflect that his service-connected mental/physical disabilities, alone, would prevent him from being able to secure or follow a substantially gainful occupation. It is notable that the Veteran had psychiatric symptoms that caused considerable distress and life interference. However, this symptomatology did not appear to severely affect his ability to work or engage with coworkers. Rather, as noted above, the Veteran appears to have had difficulty finding employment because no places were hiring, not simply because of his psychiatric symptoms. Significantly, during this time, the Veteran also did not report that his psychiatric symptoms affected his ability to be consistent, reliable, or productive at his job. Considering his psychiatric limitations in combination with his back, shoulder, and elbow impairments, the record does not reflect functional impairment such that he would be unable follow or maintain substantially gainful employment. Rather, in spite of his physical limitations, as noted in the February 2007 VA examination, the Veteran appeared to be capable to performing less physical office work without difficulty. Accordingly, for the period prior to July 7, 2008, entitlement to a TDIU on an extraschedular basis is denied. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Metzner, Paul 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.