Citation Nr: 21076189 Decision Date: 12/22/21 Archive Date: 12/22/21 DOCKET NO. 15-13 838 DATE: December 22, 2021 ORDER The February 2021 Board decision denying a total disability rating based on individual unemployability (TDIU), is vacated. From April 7, 2020, a TDIU is granted. REMANDED Prior to April 7, 2020, a TDIU on an extraschedular basis. FINDINGS OF FACT 1. Prior to the promulgation of the February 2021 Board decision in this case, the Veteran's representative submitted a December 2020 correspondence which requested that the Board wait 90 days from the date of the letter before issuing a decision, as he intended to submit additional evidence in support of the TDIU claim. 2. From at least April 7, 2020, the Veteran's service-connected disabilities have prevented him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a vacatur of the Board's February 2021 decision denying a TDIU have been met. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. 2. From at least April 7, 2020, the criteria for a TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1974 to August 1994. The case is on appeal from a November 2012 rating decision. In October 2018, the Veteran testified at a Board hearing. In May 2019, the Board remanded the case for further development. In February 2021, the Board denied the claim for a TDIU; however, that denial is being vacated, as addressed below. The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran, his spouse, his representative and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). 1. Whether the February 2021 Board decision denying a TDIU should be vacated. The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104(a); 38 C.F.R. § 20.1000. In a December 2020 letter, the Veteran and his representative were notified that the Board had received the Veteran's claims file and formally placed the appeal on the docket. This letter advised the Veteran that he had 90 days from the date of the letter or until the Board issued a decision in the appeal (whichever came first) to request a change in representation or submit additional argument or evidence. See Clark v. O'Rourke, 30 Vet. App. 92 (2018). Thereafter, in December 2020, the Veteran's representative submitted a correspondence which requested that the Board wait 90 days from the date of that letter (December 11, 2020) before issuing a decision, as the representative intended to submit additional evidence or argument in support of the TDIU claim. However, due to a delay in the mail processing, this request was not received by the time the Board issued its decision on February 18, 2021. Moreover, additional evidence relevant to the TDIU claim dated February 2021 has been received by VA. Here, the Board issued its decision in February 2021 which denied a TDIU. As noted, the representative's December 2020 correspondence requested 90 days to submit additional evidence and the Veteran should have been afforded such time. As the Veteran did not receive 90 days after the December 2020 correspondence, the Board finds that there was a denial of due process. Consequently, the February 2021 decision denying a TDIU is vacated. 2. A TDIU. Legal Criteria Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more 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). Marginal employment shall not be considered substantially gainful employment. In addition, 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. Therefore, rating boards should submit to the Director for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Board is required to obtain the Director's decision in the first instance before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: The veteran's history, education, skill, and training; Whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and Whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Facts The Veteran contends that he is unable to work due to his service-connected disabilities. In a July 2019 TDIU application, he reported the date he last worked full-time and the date he became too disabled to work was in October 2014. He indicated his employment included as a work/life specialist, realty specialist, team leader and program manager. He indicated he is a college graduate and has additional education and training, which includes risk management and environmental issues in real estate practice. In his September 2013 NOD, the Veteran stated his hernia disorder causes chronic inguinal and abdominal (intestine) pain. He stated his fibromyalgia has worsened and he cannot take prescription medication due to the adverse side effects. He reported experiencing irritable bowel syndrome due to his fibromyalgia, stomach bloating and heartburn. He noted he had to miss 45 to 60 days in the prior year due to his disabilities. In the Veteran's April 2015 substantive appeal, he indicated the scar from his hernia repair causes pain. He also stated the lipomas which are all over his body are painful and sensitive to the touch. He indicated these lipomas are associated with his fibromyalgia and are more painful when enflamed. During the Veteran's October 2018 hearing, he indicated he stopped working due to his fibromyalgia. He stated he was placed "on telework," but even then, it is hard to work while sitting. He testified his service-connected scars impact his activities of daily living. Private medical evidence was submitted from Dr. T.F. which supports the Veteran's claim for a TDIU. She provides treatment to the Veteran for his fibromyalgia. A February 2015 medical opinion from Dr. T.F. indicated the Veteran's fibromyalgia causes deep muscle pain and soreness, morning stiffness, constant radiating pain to both upper and lower extremities, sensitivity to the touch, problems sleeping, fatigue, difficulty thinking clearly and difficulty performing everyday tasks. The examiner stated the Veteran requires medication (Tramadol) every four hours. Dr. T.F. submitted a May 2015 opinion which opined the Veteran is no longer able to perform his job as a Space Utilization and Consolidation Program Manager. She indicated based on the severity of the Veteran's symptoms and his required daily medication he is no longer able to perform the duties required for this position. She noted his fibromyalgia impacts his focus, judgment, orientation, physical mobility and the ability to have the sustained cognitive focus and concentration required for such a job. The examiner indicated the Veteran can no longer work as a Program Manager or in any form of employment based on his disability. She further stated the Veteran's disorders are expected to be permanent and progressively deteriorating. In a statement received in July 2019, a former colleague of the Veteran indicated he had become dysfunctional in his job based on the physical limitations specified by Dr. T.F. and was placed in a leave without pay status resulting in the space management program being reassigned until he was physically able to perform his duties. He stated since the Veteran began teleworking, he lost weight, walked with a cane and experienced increased pressure. Following the Board's May 2019 Board remand, the Veteran was afforded an August 2019 VA examination related to his scars on the right side of the neck, right flank and left arm. The examiner indicated the service-connected disability causes no functional impact on the Veteran's ability to work. For the service-connected hernia, the examiner also reported no impact on his ability to work. In an August 2019 VA examination for the Veteran's fibromyalgia, the examiner noted symptoms of widespread musculoskeletal pain, stiffness, muscle weakness, fatigue, sleep disturbance, paresthesias and headache. However, she found the Veteran's fibromyalgia has no impact on his ability to work. In an August 2020 VA audiological examination, the examiner found the Veteran's hearing loss causes him to miss things that people say, particularly when he is not face-to-face. The Veteran also reported his tinnitus can be loud at night. In an October 2020 VA examination, the examiner indicated the Veteran's fibromyalgia impacts his ability to work, including that he requires daily support. The examiner opined the Veteran cannot lift more than 15 pounds due to his fibromyalgia and has difficulty even performing daily chores at home, such as with ambulation, cleaning and cooking. With regard to the Veteran's hernia and scars, the examiner indicated there is no functional impact on the Veteran's ability to work. A February 2021 medical opinion from Dr. M.B. was submitted in support of the claim for a TDIU. She stated based on the evidence of record, the Veteran's complaints and symptoms caused by his service-connected disabilities, including severe pain, weakness, falling, daytime sleepiness and fatigue, preclude him from obtaining and/or maintaining gainful employment. Additionally, the Veteran submitted a February 2021 statement in which he asserts that due to the symptoms of his fibromyalgia, including the medication required for the disorder, he was prevented from continuing to work. He stated he can no longer take the medication required for his fibromyalgia due to nightmares and suicidal thoughts caused. He noted he has constant pain, weakness and has fallen down the steps due to his fibromyalgia. Analysis The Board finds that from April 7, 2020, the Veteran's service-connected disabilities preclude him from securing and following a substantially gainful occupation. This is so particularly when reasonable doubt is resolved in his favor. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. After review of the evidence overall, particularly the recent February 2021 medical opinion and lay statements, the Board determines the impairment caused by the Veteran's service-connected disabilities, including his fibromyalgia, prevents him from securing and following substantially gainful employment. The medical evidence includes a May 2015 private medical opinion which indicated the Veteran's fibromyalgia prevents him from performing his job as a Space Utilization and Consolidation Program Manager. The examiner indicated based on the severity of the Veteran's symptoms and his required daily medication he is no longer able to perform his required duties. She also stated the Veteran can no longer work as a Program Manager or in any form of employment based on his disabilities. Further, the October 2020 VA examiner reported the Veteran's fibromyalgia impacts his ability to work, including that he requires daily support. Based on the Veteran's noted impairment, the Board finds a TDIU is warranted from April 7, 2020. The record reflects that the Veteran is eligible for TDIU consideration on a schedular basis from April 7, 2020. From that date, the Veteran's service-connected fibromyalgia is rated as 40 percent disabling with a combined rating of 70 percent. 38 C.F.R. § 4.16(a). However, as further discussed in the remand section below, prior to April 7, 2020, the Veteran's combined rating does not meet the schedular requirement under 38 C.F.R. § 4.16(a). Thus, a TDIU is currently warranted only for the period from April 7, 2020. REASONS FOR REMAND A TDIU prior to April 7, 2020 on an extraschedular basis. In the July 2019 TDIU application, the Veteran reported the date he last worked full-time and the date he became too disabled to work was October 14, 2014. The Board notes that from October 14, 2014 to April 6, 2020, the Veteran's service-connected disabilities included fibromyalgia, rated as 40 percent disabling, and a combined rating of 60 percent. Therefore, review by the Director of entitlement to a TDIU is necessary for the period prior to April 7, 2020, as the schedular requirement under 38 C.F.R. § 4.16(a) were not met. The Board notes there is sufficient evidence to substantiate a reasonable possibility that the Veteran is unemployable due to his service-connected disabilities from October 2014. See Snider v. McDonough, No. 19-6707 (U.S. Vet. App. November 19, 2021). Further, as noted above, a TDIU prior to April 7, 2020, may still be granted on an extraschedular basis if the Veteran was unable to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b). The Board is prohibited from granting an award of a TDIU under 38 C.F.R. § 4.16(b) in the first instance. See Wages, 27 Vet. App. at 233 (the Board is authorized to award extraschedular TDIU after obtaining the Director's decision). Therefore, the RO must first refer the claim to the Director to determine whether the Veteran is entitled to an extraschedular TDIU prior to April 7, 2020, under 38 C.F.R. § 4.16(b). The matters are REMANDED for the following action: Refer the issue of entitlement to a TDIU from October 15, 2014 to April 6, 2020 to the Director for consideration of assignment of an extraschedular TDIU during such period under the provisions of 38 C.F.R. § 4.16(b). RYAN T. KESSEL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Isaacs, Brandon 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.