Citation Nr: 21071949 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 11-33 191 DATE: December 1, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is granted. FINDING OF FACT 1. In a May 2021 decision, the Director of Compensation Service denied entitlement to a TDIU on an extraschedular basis. 2. The Veteran's service-connected back and foot disabilities prevent him from securing or following a substantially gainful occupation considering his education and occupational experience. CONCLUSION OF LAW The criteria for a TDIU are met on an extra-schedular basis. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served as a member of the United States Army, with active duty service from February 1974 to September 1975.The Veteran also had peacetime service during the Vietnam Era. This matter has previously been before the Board in June 2019, March 2020, and September 2020. In its September 2020 decision, the Board remanded the issue of TDIU for further development and referral to the Director of the Compensation Service for consideration on an extra-schedular basis. In a May 2021 Memorandum, the Director of Compensation Service, denied the Veteran's claim of entitlement to extraschedular TDIU benefits. The appeal has returned to the Board for appellate review. Entitlement to a total disability evaluation based on individual unemployability (TDIU) The Veteran contends that he is unable to work due to his service-connected back and right foot disabilities. For the reasons set forth below, the Board agrees and finds that a TDIU on an extraschedular basis is warranted. A TDIU is provided where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned on an extra-schedular basis by VA's Director of Compensation Service when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16 (b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to VA's Director of Compensation Service is warranted for extra-schedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board has done so, the Director has denied TDIU, and the issue may therefore now be adjudicated by the Board. In doing so, the Board conducts de novo review and must consider the Director's decision to be "in essence the de facto decision of the agency of original jurisdiction" and not evidence. Wages v. McDonald, 27 Vet. App. 233, 238 (2015). Unlike the criteria for an extra-scheduler rating under 38 C.F.R. § 3.321, the grant of an extra-scheduler rating for a TDIU under 38 C.F.R. § 4.16 is based on a subjective standard that seeks to determine if a particular Veteran is precluded from employment based on his or her service-connected disabilities. See VAOPGCPREC 6-96 (1996). The central inquiry is, "whether the veteran's service-connected disability is of sufficient severity to produce unemployability." See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. "A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment." Id. The ultimate question, however, is "whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment." Id. In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the following: Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran's November 2019 VA Form 21-8940 application indicates the Veteran completed four (4) years of high school education and with no additional training and has worked primarily as a brick mason. The Veteran has also stated that he has previously worked as a pastor. The Veteran's service-connected disabilities include lumbar (back) strain rated 40 percent disabling from November 7, 2019, plantar fascitis, right foot, rated 30 percent disabling from November 7, 2019; and neuritis rated non-compensable from October 10, 2017. His combined rating is therefore 60 percent from November 7, 2019. Thus, as previously discussed, the Veteran does not meet the percentage requirements for a TDIU under 38 C.F.R. § 4.16 (a). In a June 2007 VA treatment report, it was noted that the Veteran's was placed on prednisone to allow him to continue his employment as a mason but that the Veteran reported that he has been unable to work even with increased medication. See June 2007 Medical Treatment Record - Government Facility. At his October 2009 VA Back Conditions examination, the Veteran reported that he experiences constant back pain that has been progressively getting worse. The examiner opined that there would be significant effect of lumbar strain on the Veteran's occupation because of pain, decreased mobility, problems with lifting and carrying. See October 2009 VA Examination. An April 2015 VA examiner noted that the Veteran's back condition would impact his ability to work as the Veteran has low back pain all the time. See April 2015 C&P Examination. At a March 2018 VA Foot Conditions examination, the examiner opined that the Veteran's foot condition would impact his ability to work as the Veteran reported being unable to walk or stand for long periods of time. See March 2018 C&P Examination. At the October 2018 VA Back Conditions exam, the Veteran reported that he can walk about 1-2 minutes before he has to take a break due to his back pain. He also reported difficulty sleeping due to his back issue; uses a back brace, cane, and a walker regularly. The examiner opined that the Veteran cannot do any other physical aspects of labor such as prolonged standing, prolonged walking, running, lifting heavy objects, climbing, bending, or stooping; and that for the sedentary aspects of work, he has to take periodic breaks from prolonged activity. See October 2018 C&P Examination. A February 2019 VA examiner noted that the Veteran's back issue would impact his ability to work as he has limited lifting, bending, standing, and walking. See February 2019 C&P Examination. Pursuant to the Board's recent remand in September 2020, an opinion on the Veteran's employability with regards to his service-connected disabilities alone was sought in September 2020. The examination was conducted using the ACE process, without physically examining the Veteran. The examiner opined that the Veteran is unlikely to be able to do physically demanding work, because of combination of his service-connected, back, right foot, and [non-service-connected] coronary artery disease, conditions. The examiner further noted that the Veteran is as likely as not to be able to do sedentary employment or none physically demanding employments. See September 2020 C&P Examination. At a November 2020 VA Back Conditions exam, the examiner opined that the Veteran's lumbar spine condition would impact his ability to work because the Veteran is unable to stand, sit and bend for long periods of time; and that the Veteran has limited mobility and experiences right foot pain when walking. On the Individual Unemployability Statement report, the examiner noted that the Veteran is unable to perform sedentary work. See November 2020 C&P Examination. At the November 2020 VA Foot Conditions exam, the examiner noted that the Veteran's right foot disability would impact his ability to work as the Veteran is unable to perform activities for work involving standing or walking. See November 2020 C&P Examination. Throughout the pendency of this appeal, the Veteran has maintained that he cannot sit, stand, or walk for prolong periods of time and that because of his back pain and lack of sleep, his memory is impaired. There is no indication in the evidence of record that the Veteran lacks credibility. The above evidence of record reflects that the Veteran's service-connected disabilities have rendered him unemployable. The evidence indicates the Veteran's disabilities in totality would preclude him from being able to meet the physical and mental demands necessary to perform the duties required of a person with his education and experience. Additionally, the Veteran's lack of sleep and compromised concentration makes him an unreliable employee even for sedentary work. Furthermore, there is preponderance of evidence suggesting that the Veteran's back and foot disabilities would have a significant impact on his occupation as a brick mason or a pastor. While the September 2020 examiner opined that the Veteran would be capable of sedentary work, this is impracticable considering that the Veteran cannot sit for extended periods of time without taking frequent breaks. The Board acknowledges that although the Veteran has other non-service connected disabilities that may impact employment, the Veteran's service connected back disability combined with the service connected right foot disability, would significantly impact, and render the Veteran unable to obtain and maintain gainful employment. As noted previously, unlike the criteria for an extra-scheduler rating under 38 C.F.R. § 3.321, the grant of an extra-scheduler rating for a TDIU is based on a subjective standard that seeks to determine if a Veteran is precluded from employment based on his service-connected disabilities. Applying this subjective standard and taking into consideration the Veteran's level of education and his occupational history, the Board finds that a TDIU on an extra-schedular basis is warranted. Thus, affording the Veteran the benefit of the doubt, the Board concludes that the Veteran is unable to secure and maintain gainful employment as a result of his service-connected disabilities in totality. His claim for a TDIU is therefore granted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DAVID L. WIGHT Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. M. Rogers, 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.