Citation Nr: 21075281 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 12-32 139 DATE: December 20, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) effective as of the November 9, 2009 date of claim is granted. FINDING OF FACT Effective November 9, 2009, it is at least as likely as not that the Veteran's service-connected disabilities precluded his ability to secure or follow substantially gainful occupation. CONCLUSION OF LAW Effective November 9, 2009, the criteria for entitlement to a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.103, 3.340, 3.341(a), 4.16, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1991 to February 1994. This matter comes before the Board of Veterans Appeals (Board) from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously before the Board in September 2015, June 2019, and June 2020. Most recently, following a March 2021 Joint Motion for Remand (JMR) by the U.S. Court of Appeals for Veterans Claims (Court), this matter was remanded in August 2021 to refer the claim of entitlement to TDIU on an extraschedular basis to the Director of Compensation Service for a determination. The matter has been returned to the Board, and there has been compliance with the prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to TDIU prior to January 31, 2018 The Veteran seeks entitlement to a TDIU prior to January 31, 2018. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran's background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For portions of the period on appeal prior to January 31, 2018, the Veteran's service-connected disabilities did not meet the schedular criteria for TDIU under 38 C.F.R. § 4.16(a). The question before the Board is whether the criteria for a schedular and extraschedular TDIU are met during the appeal period prior to January 31, 2018. The Board referred the matter to the Director of Compensation Service in August 2021. In a September 2021 memorandum, the Director determined "the overall evidence fails to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities support an exceptional situation that prevented gainful employment prior to January 31, 2018." In support of that opinion, the Director cited to a March 2010 disability benefits questionnaire (DBQ) and the cervical and lumbar spine examinations, an April 2010 mental health VA examination, and a November 2013 VA examination. The Board will proceed to address the merits of the claim. Of record is a March 2010 right wrist DBQ, wherein the examiner found that the Veteran's right wrist disability caused significant occupational effects due to pain and problems with lifting and carrying. Similarly, March 2010 cervical and lumbar spine examinations noted pain with movement of the head and that the Veteran's impairment limited routine activities, or chores, and computer work. The examiner found that the neck and back disabilities also caused problems with lifting and carrying. A March 2010 VA Vocational Rehabilitation counseling note documents the Veteran's impairment to employability, due in part to his service-connected disabilities. The treatment provider determined the Veteran had a serious employment handicap. Additional counseling notes dated in April 2010 and November 2010 reflect that he was accepted into a Vocational Rehabilitation program to become gainfully employed. A treatment note dated in June 2010 notes that the Veteran was "presently unemployed due to his disabilities." An April 2010 VA mental health examination found that the Veteran's service-connected mental disorder symptoms are not "severe enough to interfere with work and social functioning." An April 2010 VA back examination documented Veteran's reports of chronic lower back pain with movement but found no incapacitating episodes of lumbar pain or cervical pain in the past year that required bedrest prescribed by a physician. The examiner noted limitations on walking but indicated no other functional impact on his ability to work. In an October 2010 VA examination, the examiner noted that the Veteran's knee caused decreased mobility problems with lifting and carrying, weakness or fatigue, decreased strength, and pain. A November 2013 VA examiner also noted that the knee condition impacted his ability to work due to pain, difficulty standing/walking for extended periods of time, and difficulty lifting, carrying, pushing, and pulling. In February 2014, Dr. D.A.L., of First Choice Medical Center, opined that the Veteran "ha[d] been unable to secure or follow a substantially gainful occupation due to the severity of the right knee condition alone with significant contributions from the severity of the lumbar spine and cervical spine conditions. He ha[d] been incapable of even sedentary work due to his limitations with sitting, standing, and walking." A December 2015 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability) documents the Veteran reported he last worked in September 2014. Generally, the medical evidence does not show any significant occupational impairment from the service-connected adjustment disorder prior to January 2018. See April 2010 VA mental health examination. The record does show the Veteran's right wrist disability and right knee disability, combined with his cervical and lumbar spine disorders, impaired his ability to secure or follow a substantially gainful occupation. The 2010 VA Vocational Rehabilitation counseling notes document that there is impairment to employability due to the Veteran's service-connected disabilities. The March 2010 right wrist DBQ documents the examiner found that the Veteran's right wrist disability caused significant occupational effects due to pain and problems with lifting and carrying. In February 2014 the Veteran's private provider determined the Veteran was unable to secure or follow a substantially gainful occupation due to the severity of the right knee disability alone with significant contributions from his spine disabilities. At the very least, it is at least as likely as not that a combination of the effects of the Veteran's service-connected disabilities precluded his ability to secure or follow a substantially gainful occupation throughout the appeal period, which began on November 9, 2009. The Board notes the Director of Compensation Service did not address the 2010 VA Vocational Rehabilitation counseling notes or the February 2014 opinion from Dr. D.A.L. The VA Vocational Rehabilitation Counseling notes and Dr. D.A.L.'s opinion support the finding that it is at least as likely as not the Veteran is entitled to TDIU on an extraschedular basis due to his service-connected disabilities. Thus, the claim is granted. David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Braxton, Associate 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.