Citation Nr: 21006386 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 18-45 463 DATE: February 4, 2021 ORDER Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) from October 31, 2011, to April 10, 2014, is granted. FINDING OF FACT The Veteran’s service-connected disabilities have prevented him from securing or following a substantially gainful occupation since October 31, 2011. CONCLUSION OF LAW The criteria for an extraschedular TDIU from October 31, 2011, to April 10, 2014 are met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 2003 to December 2003 and from February 2005 to May 2006. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran and his spouse testified during a Board hearing before the undersigned Veterans Law Judge. In a November 2019 decision, the Board granted a schedular TDIU from April 10, 2014, and in the same decision remanded the appeal for referral to the Director of VA’s Compensation Service (Director) for consideration of an extraschedular rating from October 31, 2011, to April 10, 2014. In a January 2020 rating decision, the RO implemented the grant of the schedular TDIU from April 10, 2014. TDIU Entitlement to an extraschedular TDIU from October 31, 2011, to April 10, 2014, is granted. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person 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, this disability shall be ratable at 60 percent or more, and that, 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). The above notwithstanding, it is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, if a veteran fails to meet the schedular requirements set forth in 38 C.F.R. § 4.16(a), an extraschedular rating may nevertheless be considered under 38 C.F.R. § 4.16(b) where a veteran is unemployable due to service-connected disabilities. The Board is prohibited from assigning an extraschedular TDIU under 38 C.F.R. § 4.16(b) in the first instance without initially referring the claim to the Director. See Floyd v. Brown, 9 Vet. App. 88, 95 (1996). The Board remanded the claim for such consideration in November 2019, which was provided in October 2020. Although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a) (2012); 38 C.F.R. § 4.16(b)). The Director’s decision is not evidence, but, rather, the de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment outside of a protected environment that exceeds the poverty threshold for one person. The noneconomic component requires consideration of a veteran’s ability to secure or follow substantially gainful employment, including factors such as the veteran’s history of education, skill, and training, as well as his or her ability to perform the physical and mental activities required by the occupation in question. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Here, the Veteran’s TDIU claim is part and parcel of his underlying increased rating claim for his service-connected traumatic brain injury (TBI) and chronic headaches. See April 2014 VA Form 21-0958, Notice of Disagreement (NOD) (requesting a total rating for TBI and headaches). Although the Veteran did not perfect an appeal of the rating assigned to his TBI and headaches by submitting a timely VA Form 9 following the September 2014 Statement of the Case (SOC), new and material evidence was constructively received regarding the headache disorder within the remainder of the appeal period in the form of relevant VA treatment records (See August 2014 VA treatment record, associated with the file ion September 20, 2014). Thus, because no determination was made as to whether this evidence was new and material pursuant to 38 C.F.R. § 3.156(b), the 2013 rating decision did not become final as to the whether the headache disorder was appropriately rated through a TDIU. See Lang v. Wilkie, 971 F.3d 1348 (2020). Thus, pursuant to Harper v. Wilkie, the issue of TDIU remains in appellate status from October 31, 2011, in conjunction with the appeal period for his increased rating claims. The Veteran is service-connected for the following disabilities: posttraumatic stress disorder (PTSD) rated as 70 percent disabling from April 10, 2014; residuals of a TBI rated as 10 percent disability from October 31, 2011; and chronic headaches associated with a TBI rated as noncompensable from October 31, 2011. He currently meets the schedular criteria for a TDIU from April 10, 2014. See 38 C.F.R. § 4.16(a). As noted above, the RO granted a schedular TDIU from April 10, 2014; thus, the remaining issue is whether an extraschedular TDIU is warranted for the earlier portion of the appeal period, or from October 31, 2011, to April 10, 2014. Here, the Veteran has a high school diploma with prior employment in manual labor. His last known full-time employment was in November 2008 as a maintenance man. See May 2015 VA Form 21-8940 and June 2015 VA Form 21-4192. The evidence of record indicates that the Veteran has been unemployable due his service-connected disabilities since October 31, 2011. Specifically, an August 2012 VA treatment record notes the Veteran’s judgment as fair, with the examiner finding moderate difficulty in occupational functioning. A May 2013 VA treatment record also notes that it was “extremely difficult” for the Veteran to manage his pain. Critically, the August 2013 VA examiner determined that the Veteran’s TBI residuals rendered him unable to work due to short term memory and decreased attention and concentration, and stated his associated daily chronic headaches might also interfere with work, as he sometimes forgot to take pain medications. Contrarily, the September 2013 VA examiner stated that his TBI residuals impacted his ability to work in that he had more difficulty absorbing new material, but did not prevent him from completing his occupational duties. In a private May 2016 opinion, Dr. V. R. opined that the Veteran was unable to maintain or gain substantial occupational employment due to his service-connected PTSD and residuals of a TBI, along with a non-service-connected left knee injury. In support of her opinion, she reasoned that the Veteran had trouble with his ability to maintain attention and concentration and accept instructions from supervisors; struggled with the ability to make it through a work day without interruption from emotionally based symptoms; exhibited nervousness, migraine headaches, and an inability to sleep for more than three to four hours at a time; became extremely agitated at the slightest miscue; and had an inability to focus or concentrate on the smallest of tasks. Notably, while Dr. V. R. included a non-service-connected left knee disability in her initial statement, she made no mention of this condition in her supportive rationale for a TDIU, instead focusing only on PTSD, TBI and headaches symptomatology as resulting in the Veteran’s unemployability. To this end, the Board notes that although evidence of his disabilities rendering him unemployable is not presented until the August 2013 VA examination, this is through no fault of the Veteran, as he first filed his claim in 2011 and was not examined by VA until August 2013. Thus, when affording him the benefit of the doubt, the Board finds his TBI residuals and headaches have prevented him from working since the beginning of the appeal period, or, October 31, 2011. Critically, the Director did not address the August 2013 VA examiner’s determination that his TBI residuals rendered him unable to work due to short term memory and decreased attention and concentration, and that his associated daily chronic headaches might interfere with work, as he sometimes forgot to take pain medications in its denial of an extraschedular rating. Regardless, as noted above, the Board is not bound by the Director’s decision. Accordingly, based on the totality of the evidence and for reasons and bases outlined above, the Board finds that the Veteran has been unable to secure or maintain a substantially gainful occupation due to his service-connected disabilities since October 31, 2011, and an extraschedular TDIU is warranted from October 31, 2011, the date of his increased rating claims for his TBI and chronic headaches, to April 10, 2014, when a schedular TDIU is in effect. The benefit sought on appeal is hereby granted in full. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Asante 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.