Citation Nr: 21073200 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 13-28 627A DATE: December 7, 2021 ORDER From October 31, 2012, entitlement to a total disability rating based on individual unemployability (TDIU), as due to service-connected disabilities, is granted on a schedular basis. From March 24, 2010, entitlement to a TDIU is granted on an extraschedular basis. FINDINGS OF FACT 1. Affording the Veteran the benefit of the doubt, from October 31, 2012, his service-connected disabilities precluded him from securing and maintaining all forms of substantially gainful employment on a schedular basis. 2. Affording the Veteran the benefit of the doubt, from March 24, 2010, his service-connected disabilities precluded him from securing and maintaining all forms of substantially gainful employment on an extraschedular basis. CONCLUSIONS OF LAW 1. From October 31, 2012, the criteria have been met for a TDIU rating on a schedular basis. 38 U.S.C. §§ 1154(a), 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19. 2. From March 24, 2010, the criteria have been met for a TDIU rating on an extraschedular basis. 38 U.S.C. §§ 1154(a), 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.1, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1944 to October 1945. He died in September 2018. The Appellant is his surviving spouse and has been substituted in this appeal. This case comes to the Board of Veteran's Appeals (Board) on appeal from a January 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In January 2011, the Veteran disagreed with this rating decision. This case was previously before the Board in June 2017 and December 2020 when it was remanded for additional development. The Board finds that there has been substantial compliance with its prior remand directives. See Stegall v. West, 11. Vet. App. 268 (1998). TDIU Legal Criteria Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.34; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In evaluating total disability, full consideration must be given to unusual physical or mental effects in individual cases, to peculiar effects of occupational activities, to defects in physical or mental endowment preventing the usual amount of success in overcoming the handicap of disability and to the effects of combinations of disability. 38 C.F.R. § 4.15. TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided 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. For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). While the regulations do not provide a definition of "substantially gainful employment," in Faust v. West, 13 Vet. App. 342 (2000), the Court defined "substantially gainful employment" as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran's earned annual income..." If these percentage criteria are not met but a veteran is, nevertheless, unemployable because of a service-connected disability or disabilities, then an extraschedular TDIU rating must be assigned. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16(b) ("[A]ll veterans who are unable to obtain and maintain a substantially gainful occupation because of service-connected disabilities shall be rated as totally disabled.") (emphasis added). 1. From October 31, 2012, entitlement to a TDIU is granted on a schedular basis. 2. From March 24, 2010, entitlement to a TDIU is granted on an extraschedular basis. As there is considerable overlap in the applicable evidence for the Appellant's claims, the Board will discuss them together. Factual Background The Appellant contends that the Veteran's service-connected disabilities precluded him from securing and maintaining all forms of substantially gainful employment prior to June 9, 2016. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.16. On March 24, 2010, the Veteran filed a claim for entitlement to a TDIU. According to the most recent September 2020 Rating Decision Codesheet, the Veteran's combined disability rating was 100 percent from June 9, 2016. The question before the Board is whether the Veteran was entitled to a TDIU prior to June 9, 2016, back to March 24, 2010, when he filed his claim before he died. From March 24, 2010, the Veteran had a combined rating of 60 percent. See September 2020 Codesheet. At that time, he was service connected for dementia evaluated with residuals of traumatic brain injury (TBI) rated at 40 percent, paralysis of the left mandibular nerve rated at 30 percent, bilateral hearing loss rated at 0 percent, scars on the forehead and left mandible area rated at 10 percent, and scars left neck rated at 0 percent. From March 24, 2010, the Veteran did not meet the schedular criteria for a TDIU. 38 C.F.R. § 4.16. From October 31, 2012, the Veteran had a combined rating of 70 percent. See September 2020 Codesheet. At that time, the Veteran was service connected for dementia evaluated with residuals of TBI rated at 40 percent, paralysis of the left mandibular nerve rated at 30 percent, bilateral hearing loss rated at 0 percent, scars on the forehead and left mandible area rated at 10 percent, right lower extremity cold weather injury rated at 10 percent, left lower extremity cold weather injury rated at 10 percent, and scars left neck rated at 0 percent. From October 31, 2012 the Veteran met the schedular criteria for a TDIU. 38 C.F.R. § 4.16. In a December 2020 VA opinion, the VA examiner noted that the Veteran served from 1944 to 1945 and died in September 2018. The cause of the Veteran's death was Alzheimer's Dementia, for which he was service connected. The Veteran served as a paratrooper in Belgium during World War II at the Battle of the Bulge, where he was shot in his left face, jaw, and neck. The VA examiner wrote that according to an April 2010 TBI examination, the Veteran had no overt problems with memory, cognitive problems, or psychological symptoms. However, in a May 2010 TBI assessment, the Veteran had cognitive and psychological residuals. The Veteran endorsed mild memory problems, irritability, and cognitive slowing. He indicated difficulty answering "complex questions and being distractible" and tended to be perseverative during the interview. The Veteran exhibited low frustration tolerance. He was diagnosed with a cognitive disorder not otherwise specified (NOS). The Veteran's neuro-psychological findings noted that he had mild impairment in the domains of memory, attention, and executive functioning. The VA examiner reported that that while the Veteran's April 2010 examination showed no overt cognitive problems or difficulty, private treatment records from May 2010 "clearly document a steady progressive decline in neurocognitive and daily functioning as of 2013," and also supported a later July 2016 examination that documented dementia. The VA examiner noted that the Veteran's social and occupational functional impairment reflected his functioning and impairments as of 2010. The December 2020 VA examiner opined that the Veteran had difficulty attending to or was easily distracted from the task at hand, had difficulty maintaining, concentrating, and focusing on work over a period of time, tended to skip from one task to another without completing the prior task, and had other mental health problems or symptoms that significantly interfered with his ability to work. The VA examiner noted that while the Veteran was able to understand simple 1-2 step instructions, progressive decline since 2010 in the domains of attention, memory, learning, and higher order processing/executive function, in conjunction with low frustration tolerance, and periodical confusion, this compromised the Veteran's ability to sustain focus of attention required to work at a consistent pace required to complete tasks within a work schedule or carry out a daily routine without supervision and/or interact with the public, supervisors, and co-workers, as required within a competitive work setting. Analysis Based on the above opinion, the Board determines that from October 31, 2012, the Veteran meets the criteria for a TDIU on a schedular basis. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Additionally, the Board determines that from March 24, 2010, the Veteran meets the criteria for a TDIU on an extraschedular basis. 38 C.F.R. §§ 3.340, 3.341, 4.16(b). As noted above, in the December 2020 VA opinion, the examiner reported that since 2010, the Veteran had been in progressive decline in the domains of attention, memory, learning, and higher order processing/executive function, in conjunction with low frustration tolerance, and periodical confusion. This compromised the Veteran's ability to sustain focus of attention required to work at a consistent pace required to complete tasks within a work schedule or carry out a daily routine without supervision and/or interact with the public, supervisors, and co-workers, as required within a competitive work setting. (Continued on next page) Based on this opinion, and affording the appellant the benefit of the doubt, the Board finds that from October 31, 2012, a TDIU is warranted on a schedular basis, and from March 24, 2010, a TDIU is warranted on an extraschedular basis. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Abrams, 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.