Citation Nr: 21072463 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-55 427 DATE: December 3, 2021 ORDER From November 27, 2012 to July 29, 2013, a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT Resolving any reasonable doubt in the Veteran's favor, he was unable to secure and follow a substantially gainful occupation by reason of his service-connected polyarthralgia due to an undiagnosed illness, right and left scapula myofascial trigger point disabilities, and a thoracic spine disability from November 27, 2012 to July 29, 2013. CONCLUSION OF LAW For the appellate period from November 27, 2012, to July 29, 2013, the criteria for entitlement to a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16 (b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1986 to March 1993. In April and August 2021, the Board remanded the appeal for further development. In August 2021, the only issue remanded was entitlement to a TDIU for the rating period from November 27, 2012 to July 29, 2013, for referral of extraschedular consideration. In an October 2021 Memorandum, the Director of Compensation denied the extraschedular TIDU claim, and it has since returned to the Board for further appellate consideration. The Board notes that the Veteran has other pending appeals, to include those returned from the United States Court of Appeals for Veterans Claims. However, all of these claims are part of the Appeals Modernization Act (AMA) framework and are not of consideration in the current Legacy appeal. In this regard, while a grant of benefits under these appeals could result in the Veteran meeting the schedular criteria for a TDIU during the period on appeal in the present case or even earlier, the Board is only able to consider evidence relevant to this specific appeal. Nevertheless, given the grant of benefits herein, there is no prejudice to the Veteran. Entitlement to a TDIU from November 27, 2012 to July 29, 2013 The Veteran asserts that he had been precluded from obtaining or maintaining substantially gainful employment throughout the pendency of the appeal, specifically as a result of his service-connected polyarthralgia due to an undiagnosed illness, right and left scapula myofascial trigger point disabilities, and a thoracic spine disability. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing 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, 4.16(a). However, even when the percentage requirements are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). The Board is prohibited from assigning a TDIU on an extraschedular basis without ensuring that the claim is first referred to the Director for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16 (b). Although the Board is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a) (2012); 38 C.F.R. § 4.16 (b)). The Director's decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to a TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history. The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, the Court defined the term "unable to secure and follow a substantially gainful occupation" in § 4.16(b) to have 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 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. See Ray v. Wilkie, 31 Vet. App. 58, 72-73 (2019). Analysis On review, the Board finds that the evidence is at least in equipoise as to whether the Veteran was precluded from maintaining and obtaining gainful occupation due to his service-connected polyarthralgia due to an undiagnosed illness, right and left scapula myofascial trigger point disabilities, and a thoracic spine disability. The Veteran had three years of a college education. He received military training as a carpenter/masonry specialist. In 2016, he received a HVAC degree. His last employment based on his VA form 21-8940 was with Quantum Corporation where he served as an inspector/auditor. Although the Veteran was not examined during this rating period on appeal, as early as 2004, it was noted that he had to stop working due to his back and bilateral hand disabilities. He reported at the time that although he attempted to find a job, he was unable to find one that did not require repetitive use of the right hand. In this regard, the Board notes that the Veteran's work experience specifically requires constant use of his hand and mobility, which were both impacted by his service-connected disabilities. (Continued on the next page) Here, the Veteran has not held a job for many years and the medical evidence supports that his musculoskeletal disabilities prevented him from maintaining gainful occupation for the rating period from November 27, 2012 to July 29, 2013, at which time he met the schedular rating for a TDIU and entitlement to a TDIU was granted. Thus, with resolution of any doubt in the Veteran's favor, the Board finds that entitlement to a TDIU on an extraschedular basis from November 27, 2012 to July 29, 2013, is warranted. S. B. MAYS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Yaffe, 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.