Citation Nr: 21005336 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 09-31 663 DATE: February 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service connected disability (TDIU) is granted for the period from January 18, 2008 to August 9, 2009, subject to the laws and regulations controlling the award of monetary benefits. FINDINGS OF FACT 1. In an October 2020 decision, the Director of Compensation Service advised that the agency of original jurisdiction deny entitlement to a TDIU on an extraschedular basis. 2. For the period from January 18, 2008 to August 9, 2009, the evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities precluded him from securing and following a substantially gainful occupation. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, for the period from January 18, 2008 to August 8, 2009, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 1969 to August 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a June 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas which, among one other thing, denied entitlement to TDIU. In February 2009, the Veteran filed his notice of disagreement, was issue a statement of the case in July 2009, and in August 2009 perfected his appeal to the Board. In his August 2009 Form 9, the Veteran requested a Board hearing with a Veterans Law Judge which was scheduled for April 24, 2014. However, in an April 2014 statement, the Veteran withdrew his request for a hearing. Therefore, the Board considers the hearing request withdrawn, and will proceed to adjudicate the case based on the evidence of record. See 38 C.F.R. § 20.704 (d). In October 2014, the Board, among one other thing, remanded the Veteran’s claim of entitlement to a TDIU finding it inextricably intertwined with an increased rating claim for prostate cancer. The RO subsequently denied TDIU, informing the Veteran in June and July 2016 supplemental statements of the case. In July 2017, the Board, among one other thing, denied the Veteran’s claim for a TDIU. The Veteran appealed the Board decision to the Court of Appeals for Veteran’s Claims (Court) which in November 2018 granted a Joint Motion for Partial Remand filed by the parties, vacating and remanding part of the Board’s July 2017 decision finding that the Board failed to address whether the Veteran’s service connected disabilities limit him to marginal employment. In August 2019, the Board granted TDIU on a schedular basis from August 10, 2009 and remanded the claim for TDIU on an extraschedular basis from January 18, 2008 to August 9, 2009. In an October 2020 advisory opinion, the VA Director of Compensation Service recommended denying the Veteran’s claim of entitlement to a TDIU on an extra-schedular basis from January 18, 2008 to August 9, 2009, stating that the evidence did not support the contention that the Veteran is unemployable due solely to service connected conditions. The RO subsequently denied the Veteran’s claim for TDIU from January 18, 2008 to August 9, 2009, informing the Veteran in a November 2020 supplemental statement of the case. TDIU A TDIU is warranted where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16 (a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from securing or following a substantially gainful occupation by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16 (a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned on an extra-schedular basis by VA’s Director of Compensation Service when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16 (b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to VA’s Director of Compensation Service is so warranted for extra-schedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board has done so, the Director has denied TDIU, and the issue may therefore now be adjudicated by the Board. In doing so, the Board conducts de novo review and must consider the Director’s decision to be “in essence the de facto decision of the agency of original jurisdiction” and not evidence. Wages v. McDonald, 27 Vet. App. 233, 238 (2015). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience, but it may not be given to his age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. See Van Hoose, 4 Vet. App. at 363. “A high rating in itself is a recognition that the impairment makes it difficult to obtain or keep employment.” Id. The ultimate question, however, is “whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.” Id. Recently, in Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” in § 4.16(b) to include two components: one economic and one noneconomic. The economic component means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. The non-economic component includes consideration of: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The Veteran’s January 2008 Form 21-8940 application indicates that the Veteran completed 4 years of high school, and most recently worked full-time in January 2007 as a quality control inspector. He reported that his incontinence, prostate cancer, and depression prevent him from securing or following any substantially gainful occupation. In a May 2014 Form 21-8940, the Veteran reported that he last worked full time in September 2006. For the time period on appeal, the Veteran is service connected for depressive disorder, rated 30 percent disabling from December 21, 2006, and 50 percent from August 10, 2009; and prostate cancer rated 40 percent from September 18, 2006. The Veteran’s combined disability rating is 60 percent from December 21, 2006 to August 9, 2009, thus the Veteran does not meet percentage requirements for a TDIU under 38 C.F.R. § 4.16 (a) for the period on appeal. A May 2007 VA examination report reflected that the Veteran’s post-military occupations included being a custodian, and working as a painter, inspector, and supervisor for Union Tank Car Company for 29 years. A March 2008 VA examination report reflected that the Veteran reported that he did not think he would be able to maintain employment due to his chronic pain, inability to sit or stand for too long, and the medications which cause fatigue. The examining psychologist stated that the Veteran may have functional impairment due to his medical problems, but noted that the Veteran did not report depressive symptoms that would prohibit him from maintaining part-time employment. In a July 2009 letter, the Veteran’s wife reported that the Veteran has problems remember to eat and take his medication. She stated that he is grumpy and moody, does not go anywhere other than church once in a while, that she must remind him to take care of his personal hygiene, and that he sometimes forgets to eat. She stated that the Veteran has leakage problems and must wear Depends even though he takes medication for his bladder control issues. She also stated that he is “easy to go off” on her and her daughter, that he is not motivated to do anything other than sleep and watch television, and that he often cannot remember what he has done with things. In a November 2010 VA examination report, the Veteran reported that he last worked in 2006, but had to retire due to developing increasing disabilities related to his back problems, and did not report any problems on his jobs prior to his retirement. The examining psychologist stated that there does not appear to be any reason from a psychiatric standpoint why the Veteran could not sustain employment. The above evidence of record reflects that the Veteran’s service connected disabilities have rendered him unemployable for the entire period on appeal. The evidence indicates that the Veteran’s depressive disorder renders him unable to function in a work environment as he does not function or interact well with other people as he is moody and grumpy even around his wife and daughter, with his wife noting that he “goes off” on them. While the November 2010 psychologist opined that there was no reason why the Veteran could not sustain employment from a psychiatric standpoint, the Veteran has provided competent and credible evidence that he is unable to perform certain basic tasks such as remembering to eat, take his medications, or tend to his personal hygiene. Whether a veteran could perform the physical and mental acts required by employment at a given time is an issue about which a lay person may provide competent evidence. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert”). Moreover, the “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner.” Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran’s inability to perform basic tasks makes it unreasonable to conclude that he would be able to perform the necessary duties required of a man with his education and experience as a custodian, inspector or supervisor. Additionally, the Veteran’s depressive disorder would also preclude him from being able to adequately perform his work duties in any capacity due to his noted lack of motivation. As the above evidence is at least evenly balanced as to whether the Veteran is unable to secure or follow a substantially gainful occupation due to his service-connected disabilities, entitlement to a TDIU pursuant to 38 C.F.R. § 4.16(b) for the period on appeal from January 18, 2008 to August 9, 2009 is warranted. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.