Citation Nr: 21072570 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 18-52 715 DATE: December 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), from March 5, 2018, is granted. REMANDED Entitlement to a TDIU, on an extraschedular basis, prior to March 5, 2018, is remanded. FINDING OF FACT From March 5, 2018, the Veteran has been unable to secure or follow substantially gainful employment due to his service-connected disabilities. CONCLUSION OF LAW From March 5, 2018, the criteria for a TDIU under 38 C.F.R. § 4.16 (a) have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from May to November 1964; August 2002 to June 2003 and from March 2006 to September 2007. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a virtual Board hearing before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran's electronic claims folder. At the hearing, the Veteran requested that the record be held open for 30 days to permit him the opportunity to submit additional evidence. The Veteran's appeal was held in abeyance for 30 days. The Board will now proceed with adjudication of the appeal. Entitlement to a TDIU, from March 5, 2018. The Veteran contends that he is entitled to TDIU because he is not capable of maintaining or sustaining any type of gainful occupation due to his service-connected back, knee, ankle and foot disabilities. See February 2016 VA Form 21-8940. For the reasons explained below, the Board finds that entitlement to TDIU, from March 18, 2018, is warranted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, 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, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). For purposes of TDIU, disabilities affecting a single body system (i.e., orthopedic) will be considered a single disability. The Veteran is service connected for several disabilities. From March 3, 2018, the Veteran has a combined rating of 70 percent. As the Veteran's back, knee foot, ankle, toe and heel disabilities affect a single body system and can be combined as one 40 percent disability, the schedular requirements are met from March 3, 2018. The Veteran reported on his VA Form 21-8940 that he last worked as an active duty soldier in 2007. He also reported that his highest level of education achieved was a high school diploma. He testified at the Board hearing that after he returned from deployment, he unsuccessfully attempted to return to his previous commercial plumbing job. See Board Hearing Transcript, p. 9. However, due to service-connected vertigo, he could no longer climb ladders, which was one of the job requirements. He also testified that his knees, feet and back caused him pain and he found it difficult to walk, sit or stand for extended periods of time. Id. at 12-13. Medical evidence, including VA examination reports and treatment records, corroborate the Veteran's reports of functional limitations. Based on the foregoing, the Board finds that entitlement to TDIU, from March 3, 2018, is warranted. The Board credits the evidence which supports the fact that the Veteran is unable to walk, sit or stand for extended periods of time or lift heavy items due to his service-connected back, knee, foot and ankle disabilities. These limitations would exclude him from most physically laborious positions. The Board finds that the Veteran is unlikely to be able to be able to sustain gainful employment in a sedentary position for 2 main reasons. First, the majority of the Veteran's employment history is in physically laborious positions. In his own words, he has never worked a "desk job." It is not impossible for him to become versed in another position; however, the Board is hard pressed to find one which he would qualify. Second, most sedentary positions would require the Veteran to sit for extended periods in front of a computer or similar setup. There is credible evidence that due to the Veteran's knee and back disabilities, he cannot sit for extended periods of time without episodes of pain. Based upon the medical treatment history, the Veteran's employment history, and his level of education, the Veteran has been unemployable, from March 3, 2018, as a result of his service-connected back, knee, ankle and foot disabilities. REASONS FOR REMAND Entitlement to a TDIU, on an extraschedular basis, prior to March 5, 2018, is remanded. Prior to March 3, 2018, the Veteran's combined rating was 60 percent. Therefore, he did not meet the requirements under 38 C.F.R. § 4.16 (a). Even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to a TDIU on an extraschedular basis may be considered when the 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 does not have the authority to assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). The Veteran credibly testified that his last position was his deployment in the military and that the majority of his military career was as a foot soldier. See Board Hearing Transcript, p.5. He testified that he never had a "desk job." Id. Aside from his military positions, he worked as a commercial plumber and has an HVAC certification. Id. at pp.7-10. However, he testified that his service-connected disabilities preclude him from any physically laborious positions. Further, he testified that he is unable to have a sedentary position because he is minimally qualified and also could not sit for extended periods of time due to his back and knee disabilities. Id. at 12. Therefore, the Board is compelled to remand the claim for entitlement to TDIU, on an extraschedular basis for referral to the Director of Compensation in accordance with 38 C.F.R. § 4.16 (b) for consideration of whether this benefit is warranted on an extraschedular basis. The matters are REMANDED for the following action: Pursuant to 38 C.F.R. § 4.16 (b), refer the claim for entitlement to TDIU, on an extraschedular basis to VA's Director of Compensation for extraschedular consideration as to whether the Veteran was unemployable due to his service-connected disabilities. The Director's attention is directed to the Veteran's credible October 2021 Board hearing testimony which established that the Veteran's occupational history was in physically laborious positions and that his service-connected disabilities preclude him from strenuous activities such as lifting, climbing, and walking. The Veteran also testified that there would be few sedentary positions for which he would qualify and that his service-connected disabilities would preclude him from sitting for extended periods of time. Michael A. Pappas Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Baskerville 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.