Citation Nr: 21006303 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 05-08 056 DATE: February 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities from May 30, 2003 to February 14, 2005, on extraschedular basis is granted. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities prevented him from obtaining and following a substantially gainful occupation from May 30, 2003 to February 14, 2005. CONCLUSION OF LAW From May 30, 2003 to February 14, 2005, the criteria for a TDIU on extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from October 1981 to October 1984 and from November 1990 to August 1991, with additional Reserve service. The matter is before the Board of Veterans’ Appeals (Board) on appeal from rating decisions in July 2004 and August 2008. In January 2018, the Board awarded an effective date of February 15, 2005, for the grant of the TDIU and remanded the issue of entitlement to TDIU prior to February 15, 2005 for referral to the Director of Compensation for an opinion as to whether the Veteran’s service-connected disabilities rendered him unable to secure and follow a substantially gainful occupation, pursuant to § 4.16(b). VA will grant a total disability rating when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from securing and following substantially gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 38 C.F.R. § 4.16 (a) provides that, if there is only one such disability, it must be rated at 60 percent or more; and 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. Subsection (b) of the same regulation provides that it is VA’s policy 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. When the claimant does not meet the schedular criteria of subsection (a), however, the Board must first forward the case to the Director of the Compensation Service for extraschedular consideration. The Board has jurisdiction to review the Director’s refusal to assign an extraschedular rating. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015); Kuppamala v. McDonald, 27 Vet. App. 447, 456 (2015). From May 30, 2003 to February 14, 2005, the Veteran was service connected for an anxiety disorder, rated as 30 percent disabling; obstructive and restrictive airway disease, rated as 30 percent disabling; a right hand disorder, fourth and fifth metacarpal bones, rated as 10 percent disabling; hearing loss, rated as 10 percent disabling; and tinnitus, rated as 10 percent disabling. His combined disability rating was 60 percent. Thus, he did not meet the schedular criteria for a TDIU. Pursuant to the Board’s January 2018 remand orders, the AOJ referred the issue of entitlement to TDIU prior to February 15, 2005, to the Director of the Compensation Service for extraschedular consideration. In August 2019, the Director issued a decision denying the Veteran’s request for an extraschedular TDIU rating prior to February 15, 2015. Because the Director has already considered the question in the first instance, the Board has jurisdiction to consider the award of an extraschedular TDIU rating. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court clarified the consequences of referrals for extraschedular TDIU. The Court determined that a decision to refer a claim to the Director of the Compensation Service for extraschedular consideration under 38 C.F.R. § 4.16 (b) is a factual finding, but the referral does not require the Board to award an extraschedular rating. Id. at 65. However, the Board “must ensure that it adequately explains its reasoning when a factual finding made at the referral stage comes out differently at the review stage.” Id. at 66. After examining comparable Social Security regulations, the Court’s opinion in Ray determined that the phrase “unable to secure and follow a substantially gainful occupation” in § 4.16(b) contains both economic and noneconomic components. The economic component requires a determination as to whether a veteran’s income exceeds the poverty threshold. Id. at 73. The noneconomic component concerns a veteran’s ability to secure and follow such employment. The Court indicated that it may be appropriate to consider the veteran’s history, education, skill, and training. Id. The Court found that it was also necessary to consider a veteran’s physical ability, with possible relevant factors including limitations as to lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as audio and visual limitations. Finally, consideration should be given to the veteran’s mental ability, including his limitations as to memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Id. According to the Court, these factors do not constitute a mandatory checklist. Rather, discussion of these factors may become necessary if they are raised by the evidence. Id. Initially, the Board finds that the relevant appeal period extends from May 30, 2003 to February 14, 2005, as the issue of the Veteran’s unemployability was raised during the pendency of the increased rating claim for the Veteran’s service-connected anxiety disorder received by the AOJ on May 30, 2003. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Addressing the “economic component” announced by the Court in Ray, the record indicates that during the period from May 30, 2003, to February 14, 2005, the Veteran did not receive any earned income from employment. Addressing the “noneconomic component” announced by the Court in Ray, the record indicates that the Veteran’s service-connected psychiatric disorder interfered with his ability to secure and follow a substantially gainful occupation due to difficulty with concentration and hostile behavior towards supervisors and coworkers. It is important to note that prior to and shortly after the appeal period, the Veteran reported problems with hostility and sometimes violence both at work and at home. The Veteran also experienced shortness of breath due to his service-connected obstructive and restrictive airway disease. At the VA examinations in November 2003, the Veteran reported that that he was fired from the Post Office in 1999. He complained of sleep disturbance and psychological symptoms, including depression, anxiety and memory loss. His mood was described as mostly anxious. On VA respiratory examination in November 2003, the Veteran complained of dyspnea on effort and gave a history of a productive cough. A pulmonary function test showed mild obstruction and restriction and mild air trapping. A January 2005 Physician Progress Note indicate that the Veteran had problems with concentration and judgment. At the February 15, 2005, VA examination, the Veteran reported that he was very irritable and was very poorly tolerant to frustration; on several occasions, his wife had accused him of domestic violence and he had even been arrested; he had been involved in arguments and fights with others including a situation in which he was stabbed; and that he did not get along with others including family members. A May 2005 VA Social and Industrial Field Survey Report, the Veteran reported having behavioral problems that consisted in engaging in constant arguments with his neighbors and in his job and that he was having legal problems with his wife due to domestic violence. He also reported problems concentrating. The social worker found that the Veteran had moderate industrial impairment and moderate social impairment and concluded that he was unable to work due to his psychiatric condition; he showed behavioral problems in his home and in the community which was indicative of his degree of impairment. The Board finds that the evidence is at least evenly balanced as to whether the Veteran’s service-connected disabilities prevented him from working between May 30, 2003 and February 14, 2005. Accordingly, the Board finds that, due to his service-connected disabilities, the Veteran was unable to secure or follow a substantially gainful occupation consistent with his education, training, and work history throughout the relevant appeal period. Thus, a TDIU rating will be assigned on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) from May 30, 2003 to February 14, 2005. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Olson, 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.