Citation Nr: 21075164 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 14-32 008 DATE: December 17, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to April 18, 2019 is denied. REMANDED Entitlement to a TDIU from April 18, 2019 to September 25, 2019 is remanded. FINDING OF FACT For the period prior to April 18, 2019, the Veteran's service-connected disabilities did not render him unable to secure or follow a substantially gainful employment. CONCLUSION OF LAW For the period prior to April 18, 2019, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.340, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1980 to October 1983. In April 2021, the Board of Veterans' Appeals (Board) issued a decision that, in pertinent part, granted entitlement to TDIU from September 25, 2019, and remanded the period prior to September 25, 2019, for additional development. Entitlement to a TDIU prior to April 18, 2019. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability 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. 38 C.F.R. § § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disabilities must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. § §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). 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). Initially, the Board notes that in June 2021, the Veteran was mailed a VA Form 21-8940, Application for Increased Compensation Based on Individual Unemployability. Nonetheless, the Veteran has not returned the completed form. Prior to September 25, 2019, the Veteran's service-connected disabilities consisted of: trochanteric pain syndrome, right hip (10 percent from February 19, 2019 to September 25, 2019, and 20 percent thereafter); trochanteric pain syndrome, left hip (10 percent from February 19, 2019 to September 25, 2019, and 20 percent thereafter); absence acquired, right testicle (10 percent from October 15, 1983); painful scar, status post right orchiectomy associated with absence acquired, right testicle (10 percent from August 20, 2013); tinnitus (10 percent from February 19, 2019); thigh, limitation of extension, right hip (0 percent from February 19, 2019 to September 25, 2019, and 10 percent thereafter); thigh, limitation of extension, left hip (0 percent from February 19, 2019 to September 25, 2019, and 10 percent thereafter); and, residual scars, status post right orchiectomy associated with absence acquired, right testicle (0 percent from August 20, 2013.) In light of the foregoing, the Veteran's combined disability ratings are as follows: 10 percent from October 15, 1983 to August 20, 2013, 20 percent from August 20, 2013 to February 19, 2019, 40 percent from February 19, 2019 to September 25, 2019, and 90 percent from September 25, 2019. For the period prior to April 18, 2019, the Veteran did not have at least one disability rated at 60 percent, or one or more disability ratable at 40 percent or more with a combined 70 percent rating and has not met the schedular criteria for a TDIU. Even though the Veteran did not meet the schedular criteria for consideration of a TDIU prior to April 18, 2019, the Board must still consider whether referral for extraschedular consideration under 38 C.F.R. § 4.16(b) is warranted. Under the extraschedular provision of 38 C.F.R. § 4.16(b), a claimant must show that he is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities in order to warrant a referral to the Director, Compensation Service, for extraschedular consideration. The record shows that the Veteran obtained his general education development (GED) certificate. Prior to serving in the military, the Veteran worked as a welder, in retail, and as a paper boy. Following his separation from service, the Veteran worked as a house painter. On VA examination of the Veteran's reproductive system in November 2013, the examiner noted that the Veteran was a painter, and that when he tried to extend his right leg while climbing a ladder, he had pain. Due to this, the examiner indicated the Veteran no longer climbed ladders and had pain severe enough that he had to take days off. Additionally, the examiner noted that the Veteran formerly worked for a painting company but retired about 18 months prior to the examination due to limitations to his working time caused by scrotal pain. Lastly, the examiner indicated the Veteran occasionally worked as a painter, but not enough to provide an income for his family. See VA Treatment Record received November 2013. A VA treatment note from April 2014 indicates that the Veteran was employed as a painter. See VA Treatment Record received May 2019. A VA treatment note from September 2016 indicates that the Veteran was employed full-time as a painter. In October 2016, the Veteran was found to be marginally employed with very low income. In January 2017, the Veteran was noted to be homeless and unemployed. A March 2017 VA treatment entry indicates that the Veteran was a licensed painter and wanted to get back into business as he was stably housed. See VA Treatment Record received August 2017. The Veteran's VA treatment record also contains a May 2017 letter from the Veteran's VA physician, Dr. J.J. In the letter, Dr. J.J. wrote that the Veteran experienced chronic heaviness and pain all day while standing. Additionally, Dr. J.J. indicated that the Veteran had right inner thigh pressure and pain, which affected his driving. Lastly, Dr. J.J. wrote that the Veteran was employed as a painter. See VA Treatment record received June 2017. An August 2017 VA treatment note indicates that the Veteran was not working; however, the entry further details that the Veteran was under investigation by the licensing board for an altercation that he had with either a customer or the contractor of a job. See VA Treatment Record received August 2017. A VA treatment note from February 2018 indicates that the Veteran was working intermittently as a painter. The Board notes, however, that the treatment note specifically states that, "[the Veteran] is able to work.". See VA Treatment record received March 2019. In July 2018, the Veteran's representative submitted an appellate brief wherein he asserted that the Veteran could no longer climb ladders, and that he had lost his job as a result of pain. See July 2018 Appellate Brief. On VA examination in March 2019, the Veteran reported that his tinnitus affected his attention and alertness. Additionally, he stated that it interrupted his concentration and sometimes caused confusion. See VA Examination received April 2019. On VA examination in April 2019, the Veteran indicated that following service, he was self-employed as a painter from 1984 to 2016. Additionally, the examination report maintained that the Veteran's painful scars interfered with his work on prolonged standing and going up and down ladders. See VA Examination received May 2019. Despite the demonstrated symptomatology for the period prior to April 18, 2019, the evidence does not support a finding that the Veteran was unable to obtain and maintain substantially gainful employment by reason of his service-connected disabilities alone. In reaching this conclusion, the Board acknowledges that the Veteran had multiple periods of low income and unemployment prior to April 18, 2019; however, the record does not show that his service-connected disabilities rendered him unable to secure or follow a substantially gainful employment. In this regard, the record shows that the Veteran worked as a painter as recently as February 2018. Therefore, the Veteran's contention that he retired in 2016 due to pain from his service-connected disabilities is refuted by later treatment records, which show employment as a painter. Further, while the Veteran was noted to be homeless and unemployed in January 2017, a March 2017 VA treatment record indicated that the Veteran had stable housing and wanted to get back into business as a painter. This indicates that the Veteran was unemployed as a result of being homeless rather than as due to his service-connected disabilities. The August 2017 treatment entry, which noted that the Veteran was not working, also stated that he was under investigation by the licensing board for an altercation that he had with a customer or contractor. Thus, it appears that the Veteran may not have been working due to the investigation from the licensing board as opposed to his service-connected disabilities. Lastly, while the February 2018 VA treatment record indicates that the Veteran was only working intermittently, it explicitly stated that the Veteran was "able to work". Thus, while the Board acknowledges that the Veteran had periods of low income and unemployment, it appears that these were due to factors such as homelessness, an investigation by the licensing board, or factors other than his service-connected disabilities. Moreover, to the extent that the Veteran's service-connected disabilities interfered with his ability to work, the record indicates that pain from his service-connected disabilities limited his ability to engage in prolonged standing and climbing ladders, and therefore impacted his ability work as a painter; however, the record does not indicate that the Veteran had limitations that substantially affected his ability to perform other, non-physical occupations that do not involve prolonged standing or climbing ladders. Based on the foregoing, the Board finds that for the period prior to April 18, 2019, the Veteran's service-connected disabilities did not preclude employment and referral to the Director, Compensation Service for extraschedular consideration of a TDIU is not warranted. 38 C.F.R. § 4.16(b). REASONS FOR REMAND Entitlement to a TDIU on an extraschedular basis from April 18, 2019 to September 25, 2019. As indicated above, for the period from April 18, 2019 to September 25, 2019, the Veteran did not meet the schedular requirements for the assignment of a TDIU. However, the Board recognizes that 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. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the TDIU schedular requirements, rating boards will submit the case to the Director, Compensation Service, for extraschedular consideration under 38 C.F.R. § 4.16(b). After a thorough review of the record, the Board finds that remand is warranted for referral to the Director, Compensation Service. In relevant part, the record suggests that, for the period from April 18, 2019 to September 25, 2019, the Veteran's service-connected disabilities may have affected his ability to work, such that he was unemployed. In particular, an April 2019 VA examination indicated that the Veteran would have difficulty with activities that triggered or worsened symptoms associated with his service-connected bilateral hip conditions, such as sitting for more than 30 minutes. This evidence also shows that the Veteran's service-connected disabilities limited his ability to perform other physical activities such as climbing ladders. Therefore, for the period from April 18, 2019 to September 25, 2019, the evidence is at least in equipoise as to whether the Veteran's service-connected disabilities precluded substantially gainful employment. Accordingly, the agency of original jurisdiction (AOJ) is instructed to refer the TDIU claim to the Director, Compensation Service for extraschedular consideration. The matter is REMANDED for the following action: The AOJ should submit the Veteran's claim for a TDIU from April 18, 2019 to September 25, 2019 to the Director, Compensation Service, for extraschedular consideration pursuant to 38 C.F.R. § 4.16(b). A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Talton, John H. 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.