Citation Nr: 21076089 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 16-12 823 DATE: December 22, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis for the period of November 2, 2017, to December 6, 2020, is granted. Entitlement to a TDIU for the period beginning December 6, 2020, is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran's service-connected disabilities preclude gainful employment consistent with her education and occupational experience. CONCLUSION OF LAW The criteria for a TDIU from November 1, 2017, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1990 to February 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). This case was previously before the Board in November 2018, August 2020, and June 2021 on which occasions the claims were remanded. 1. Entitlement to a TDIU on an extraschedular basis for the period of November 2, 2017, to December 6, 2020. 2. Entitlement to a TDIU for the period beginning December 6, 2020. Based on a review of the record, the Board finds that the Veteran's service-connected disabilities precluded substantially gainful employment effective November 1, 2017. It is the 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). A TDIU may be granted where the schedular rating is less than 100 percent if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service- connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16(a), 4.19, 4.25. Generally, to be eligible for a TDIU, a schedular percentage threshold must be met. If there is only one service-connected disability for TDIU purposes, it must be rated at least 60 percent disabling. If there are two or more service-connected disabilities, there must be at least one disability rated at 40 percent or more and sufficient additional disabilities to bring the combined overall rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). When the Veteran's service-connected disabilities fail to meet the applicable percentage standards enunciated in § 4.16(a), an extra-schedular TDIU is for consideration if there is at least suggestion he is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In determining employability for VA purposes, consideration is given to the level of education, special training, and work experience, but not to age or non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16(a), 4.19; see also Faust v. West, 13 Vet. App. 342 (2000). The question is whether the Veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Veteran does not have to be 100 percent unemployable in order to be entitled to a TDIU. Roberson v. Principi, 251 F. 3d 1378, 1385 (Fed. Cir. 2001). The term "unemployability," as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. For purposes of determining whether a claimant is entitled to a TDIU, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). Marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be held to exist, on a facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Consideration shall be given in all claims to the nature of the employment and the reason for termination. Id. The Veteran was last employed on a full-time basis in November 2017 as a driver with a medical transportation company. As of February 2018 she has worked on a part-time basis as a school bus driver. (7/26/2021, VA 21-8940, p. 2). Her annual income is approximately $12,203. (7/26/2021, VA 21-4192, p. 1). The Veteran's employment since February 2018 is marginal. The poverty threshold for a single person, as defined by the Bureau of the Census, was $12,784 in 2018, $13,011 in 2019, and $13,171 in 2020. As the Veteran has earned less than the poverty thresholds since 2018, the Board finds that her income was marginal, and is therefore not considered substantially gainful. Service connection is in effect for upper left extremity radiculopathy (30 percent from December 6, 2020), left shoulder strain (20 percent from April 13, 2012), right lower extremity sciatic nerve radiculopathy (20 percent from February 18, 2021), left lower extremity sciatic nerve radiculopathy (20 percent from February 18, 2021), left lower extremity femoral nerve radiculopathy (20 percent from February 18, 2021), right lower extremity femoral nerve radiculopathy (20 percent from February 18, 2021), lumbar spine strain (10 percent from April 13, 2012), right ankle strain (10 percent from April 13, 2012), left ankle strain (10 percent from April 13, 2012), and cervical strain (10 percent from April 2012, 20 percent from December 6, 2020, and 10 percent from April 2, 2021). Her combined overall rating was 50 percent from April 13, 2012, 70 percent from December 6, 2020, and 90 percent from February 18, 2021. The Veteran meets the threshold requirements set forth under 38 C.F.R. § 4.16(a) from December 6, 2020. Prior to December 6, 2020, the Veteran did not meet the threshold percentage criteria for a TDIU under 38 C.F.R. § 4.16(a). However, as the Veteran asserted that she became too disabled to work in November 2017, her claim was referred to the Director of the Compensation Service (herein Director) for initial consideration of whether a TDIU is warranted on an extra-schedular basis under the special provisions of 38 C.F.R. § 4.16(b). The Director issued an advisory opinion in September 2021, indicating that there "is no evidence of inability to perform sedentary employment due to service-connected conditions prior to December 6, 2020." (9/30/2021, VA Memo, p. 2). Although the Board is required to obtain the Director's decision before awarding extra-schedular TDIU benefits, the Board is not bound by the Director's decision. See Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015); 38 C.F.R. § 4.16(b). The Board finds that the Veteran's service-connected disabilities render her unable to secure and follow a substantially gainful occupation. As such, entitlement to a TDIU is warranted effective November 2, 2017, the day after the Veteran last worked on a full-time basis. In this regard, in August 2021 the Veteran requested a doctor's statement explaining her absence from work due to back, neck, and ankle pain. (10/1/2021, CAPRI, p. 8). Similarly, in May 2021 she requested a doctor's statement explaining her absence from work due to migraines (which she is not service connected for) and back pain. She additionally reported that driving has been hard on her ankles. (6/28/2021, CAPRI, p. 4, 7). In March 2021 the Veteran was on medical leave for three weeks due to a torn right anterior talo-fibular ligament. (5/3/2021, CAPRI, p. 1). In December 2020 she reported a flare-up of back pain that resulted in her missing work for 2 days. (2/25/2021, CAPRI, p. 31). In October 2020 the Veteran reported experiencing flare-ups that result in significant difficulty walking for several days. (2/3/2021, CAPRI, p. 75). In October 2019 she reported "excruciating" upper and lower back and shoulder pain. The pain caused difficulty standing and walking. (9/24/2020, CAPRI, p. 27). Based on the aforementioned evidence, the Board finds that the pain from the Veteran's service-connected disabilities results in frequent absenteeism from her part-time employment. Based on the increased absenteeism, the Board finds that the Veteran is unable to secure or follow a substantially gainful occupation consistent with her education and occupational experience. As such, a TDIU is warranted effective November 2, 2017, the day after the Veteran last worked on a full-time basis. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Glenn, 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.