Citation Nr: 21073888 Decision Date: 12/13/21 Archive Date: 12/13/21 DOCKET NO. 17-03 689 DATE: December 13, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDINGS OF FACT 1. The Veteran's combined disability rating is 60 percent. 2. The Veteran's service-connected disabilities have precluded him from obtaining and securing substantially gainful employment that is consistent with his education and occupational experience. CONCLUSION OF LAW Resolving all doubt in the Veteran's favor, the criteria for entitlement to a TDIU on an extraschedular basis have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the United States Air Force from August 1957 to May 1962. During his period of service, the Veteran earned the Air Force Outstanding Unit Award, Air Force Good Conduct Medal, and Air Force Longevity Service Award. The issue of entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, was previously before the Board in November 2020. In its November 2020 decision, the Board denied entitlement to a TDIU on an extraschedular basis. In a September 2021 Joint Motion for Remand (Joint Motion), the United States Court of Appeals for Veterans Claims (Court) indicated that the Board erred by failing to provide an adequate statement of reasons or bases to support its denial of TDIU on an extraschedular basis. The Court vacated the part of the November 2020 Board decision that denied entitlement to a TDIU on an extraschedular basis and remanded the matter for readjudication consistent with the Joint Motion. Entitlement to a TDIU Total disability ratings for compensation based on individual unemployability 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. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits 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 central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment cause by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In order for a Veteran to prevail in his claim for TDIU, the record must reflect circumstances, apart from non-service-connected conditions, that place him in a different position than other Veterans who meet the basic schedular criteria. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question is whether the Veteran, in light of his service-connected disorders, is capable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose, 4 Vet. App. at 361. Here, the Veteran is currently service-connected for right lower extremity radiculopathy, sciatic compression/lumbosacral plexopathy as a consequence of focal hemorrhage, evaluated as 50 percent disabling; tinnitus, evaluated as 10 percent disabling; and bilateral hearing loss, evaluated as 0 percent disabling. The Veteran's combined disability rating is evaluated at 60 percent. Accordingly, because the Veteran does not have a single service-connected disability rated at 60 percent or more, or a combined disability rating of 70 percent or more, he does not meet the percentage requirements for a TDIU and may not, as a matter of law, be awarded a TDIU pursuant to 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(a). While the Veteran does not meet the schedular criteria for a TDIU, it is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular 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'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). Pursuant to the March 2019 Board remand, the Agency of Original Jurisdiction (AOJ) properly submitted the issue to the Director of Compensation Service for Extraschedular consideration. See Correspondence, dated June 25, 2020. In August 2020, the Executive Director of Compensation Service issued an advisory opinion, finding that entitlement to individual unemployability was not established. See VA Memo, dated August 17, 2020. Specifically, though the Executive Director acknowledged the Veteran's overall condition was poor, it was determined that the preponderance of the medical evidence of record did not show such was due to service-connected and 38 U.S.C. § 1151 disabilities. In support of her finding, the Executive Director cited a February 2011 VA opinion, which explained that the Veteran was a well-documented risk for falls, dating as far back as 2006. He had multiple strokes, chronic right-sided weakness, morbid obesity, and diabetic peripheral neuropathy, which combined to make his gait unstable and his fall risk high. The examiner indicated that these conditions were present prior to the bone marrow biopsy and subsequent hematoma. As such, the examiner opined that it was unlikely that any fall that the Veteran sustained was related to the post-procedure right buttocks hematoma. The Executive Director also cited an addendum opinion provided in May 2015, which noted the examiner's belief that the gluteal artery rupture did not cause or aggravate the Veteran's loss of balance. The examiner noted that the Veteran had multiple strokes that affected the right side of the body, in addition to prominent diabetic peripheral neuropathy. Thus, the examiner opined that it was more likely than not that the multiple strokes affecting the right side of the body and diabetic peripheral neuropathy was the direct and proximate cause for the loss of balance symptoms. The examiner also opined that it was less likely than not that the arterial perforation aggravated the symptoms of loss of balance. The examiner added that the Veteran's symptoms causing the giving out of the right leg were more likely than not to relate to his history of right-sided stroke than to the gluteal artery rupture/hematoma. The Executive Director reiterated that a high rating in itself recognizes that impairment makes it difficult to obtain and keep employment. Accordingly, the ultimate question is whether the Veteran, because of service-connected and 38 U.S.C. § 1151 disabilities, is incapable of performing the physical and mental acts required by employment, not whether or not he can find employment. Thus, in consideration of all relevant evidence; including, but not limited to the Veteran's education, training, and work history, the Director of Compensation Service determined the overall evidence failed to support the contention that any of the service-connected and 38 U.S.C. § 1151 disabilities or a combination of the effects of those disabilities supported an exceptional situation that prevents gainful employment. The Board can review the decision of the Director with regard to entitlement to a TDIU under 38 C.F.R. § 4.16(b) and make an independent determination. Anderson v. Shinseki, 22 Vet. App. 423 (2008). Thus, the remaining question is whether the Veteran's service-connected disabilities precluded gainful employment for which his education and occupational experience would have otherwise qualified him. Having reviewed the record, the Board finds that the preponderance of the evidence of record as to whether the Veteran's service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation supports an award of a TDIU on an extraschedular basis. Turning to the merits, the Veteran's October 2008 VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, indicates that he completed high school and one year of college, though there is no evidence of completion of a degree. As of 1999, the last period of employment noted in the record, the Veteran's employment history consisted of work in piping design. There is no evidence of any type of special training. In a March 2009 VA general medical examination report, the examiner noted that the Veteran had worked as a pipe engineer post-service until 1999. The examiner noted the Veteran had a history of multiple health problems, including diabetes mellitus, type II; cerebrovascular accidents; hypertension; coronary artery disease; four vessel coronary artery bypass graft; nephrolithiasis; status-post lithotripsy; hypercholesterolemia; and degenerative joint disease of his lower back with lumbosacral spondylosis. He was also noted to have had a diagnosis of bilateral peripheral neuropathy of his lower extremities since 1989. The examiner explained the Veteran underwent a bone marrow biopsy in December 2008 for pancytopenia, at which time he suffered complications, to include a right gluteal hematoma, that resulted in sciatica in the right lower extremity. Biopsy results showed a macrocytic anemia, normal cellular bone marrow with mild relative hyperplasia and leukopenia with absolute lymphocytopenia. The examiner stated that the Veteran's mobility and function had improved with physical therapy. He was able to walk about 100 yards with the use of a walker and was able to transfer in and out of the bed; however, he was unable to lie on his right side due to pain. The examiner opined that the Veteran was unable to work as an engineer due to this inability to walk, climb, stand, or sit for a long time, secondary to his multiple medical conditions and comorbidities. In a June 2014 lay statement, the Veteran reported that the sensation in his leg had not returned after the biopsy. He was unable to walk more than fifty feet without the use of his walker. He also experienced several falls because of his right leg giving out on him. The Veteran reported that he was unable to sit for extended periods without the use of a special air cushion. His leg would also become numb and painful if he remained seated for longer than twenty minutes. Due to his symptoms, he was unable to complete chores nor participate in hobbies. The Veteran's treatment records were reviewed in December 2014 and an opinion was issued by Dr. J. E., Vascular Surgeon at the Temple VAMC. Dr. J. E. noted that the Veteran had sustained direct nerve compression as a result of the hematoma, which caused severe pain and numbness. The physician also noted that the Veteran suffered long-term nerve damage. An addendum opinion was provided in February 2015 by Dr. K. M, Chief of the Neurology Section at the Temple VAMC. The physician stated that the Veteran's diabetic peripheral neuropathy and right leg radiculopathy, combined with his history of strokes that recurrently affected his right side, caused his problems with weakness, paresthesia, and dysesthesia in his right leg. Moreover, although the physician noted that the right leg pain experienced by the Veteran after the biopsy-induced hemorrhage was consistent with that of patients with neurologic difficulties as a consequence of hemorrhage, he was unable to opine on the degree of the involvement due to the hematoma. In a May 2015 addendum opinion, Dr. K. M. opined that the Veteran's paresthesia and dysesthesia of the right lower extremity was more likely than not to have been aggravated by the gluteal artery rupture/hematoma due to the proximate aggravation of pain in the right lower extremity immediately following the biopsy procedure. The physician further opined that it was possible that the involvement of the right lumbosacral plexus may have had an impact on sensory and motor function of the right lower extremity. However, given the Veteran's history of prior strokes affecting the right side of his body and diabetic peripheral neuropathy, the examiner was unable to opine on the degree of the involvement. In his August 2015 notice of disagreement, the Veteran stated that his life had been ruined as a result of the complications sustained as a result of the biopsy. He reported that he had to use a power chair for mobility and had to depend on others for transportation. VA treatment records from November 2017 note that the Veteran continued to experience pain, mainly in the low back with radiation to the right lower extremity. The Veteran reported a burning sensation in the right calf. The examiner noted that the Veteran's gait was antalgic. Range of motion in the lower limbs was full; though, the Veteran was noted to have displayed an inability to maintain his balance. Sensation to light tough was normal. Pinprick sensation was decreased diffusely. The Veteran testified at a Travel Board hearing in December 2017. He stated that he could not walk more than a few feet without holding on to furniture or the wall for stability. He also stated that he could not do much without experiencing pain, which affected his ability to do lawn work or participate in hobbies. He reported that the pain radiated down his leg and simulated the feeling of a sharp point or hot poker. The Veteran further reported that he experienced muscular atrophy in his lower legs and had suffered a number of falls due to his leg giving out. The Veteran appeared for a VA hearing loss and tinnitus examination in September 2019. The examiner indicated that the Veteran's hearing loss and tinnitus impacted ordinary conditions of daily life, though there were no reports of impacted work activities. Here, the evidence shows that that Veteran's service-connected right lower extremity radiculopathy and sciatic compression/lumbosacral plexopathy as a consequence of focal hemorrhage has precluded him from securing or following a substantially gainful occupation. Although the Veteran suffers from both service-connected and nonservice-connected disabilities that impact his ability to work, the evidence shows that the Veteran's right lower extremity disability significantly contributes to the Veteran's inability to work. The lay and medical evidence of record shows that the Veteran's occupational history consists exclusively of pipe engineering and his service-connected disabilities has been shown to impact his ability to perform the type of employment he has previously held. (CONTINUED ON NEXT PAGE) Ultimately, the determination of whether a Veteran is capable of substantially gainful employment is not a medical one; it is for the adjudicator. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). Given the probative evidence of record, and after affording the Veteran the benefit of the doubt, the Board finds that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation and an award of TDIU on an extraschedular basis is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). A. S. CARACCIOLO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Tracy O. Joseph, 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.