Citation Nr: 21006882 Decision Date: 02/05/21 Archive Date: 02/05/21 DOCKET NO. 14-23 655 DATE: February 5, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis for the period prior to January 11, 2019, is granted. FINDING OF FACT Affording the Veteran the benefit of the doubt, his service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment during the period prior to January 11, 2019. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis prior to January 11, 2019, have been satisfied. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 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 from May 1965 to July 1965. This matter was most recently before the Board in October 2020, when it was remanded for additional development. There has been substantial compliance with the remand and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran contends that he is unemployable because of the severity of his service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities and, therefore, entitled to a TDIU despite not meeting the schedular criteria. The Board concludes that the award of a TDIU on an extraschedular basis for the period prior to January 11, 2019, is warranted. VA’s policy is to grant TDIU in all cases where a service-connected disability causes unemployability regardless of the percentage evaluations. 38 C.F.R. § 4.16 (b). In situations where the percentage evaluations do not allow TDIU under § 4.16 (a), an extraschedular TDIU may be awarded under § 4.16 (b). The Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 4.16 (b) in the first instance. In this case, the Veteran does not meet the schedular criteria for TDIU consideration under 38 C.F.R. § 4.16 (a). He has been in receipt of a combined 40 percent disability rating since October 25, 2012, and a combined 60 percent disability rating since January 11, 2019, for a lumbar spine disability and bilateral lower extremity radiculopathy. In October 2020, the Board remanded the TDIU claim so it could be referred to the Director of the Compensation and Pension Service (Director) for consideration of entitlement to a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b). That same month, a rating decision was issued awarding the Veteran TDIU effective January 11, 2019. In a December 2020 memorandum, the Director concluded that the evidence failed to support the Veteran’s contention that any of his service-connected disabilities – or a combination of the effects of those disabilities – supported an exceptional situation that prevented gainful employment prior to January 11, 2019. The Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance; however, the Board is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The central inquiry in a claim for a TDIU is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The ultimate question, however, is whether a Veteran can perform the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. The Veteran has indicated that he last worked full time and became too disabled to work because of his service-connected disabilities in January 1980. He reported having finished four years of high school. His only reported work history was as a labor foreman from October 1969 to October 1980. See January 2020 TDIU application on VA Form 21-8940. A September 2002 VA treatment record noted the Veteran worked as a supervisor in concrete work. He has held three jobs, and he was self-employed for more than 30 years. In February 2013, a VA examiner found that the Veteran’s back disability impacted his ability to work, adding that the Veteran had difficulty lifting heavy objects and bending frequently. In January 2019, another VA examiner found after an examination of the Veteran’s back disability that he was unable to work due to pain with prolonged standing. He noted the Veteran was a retired construction worker. As noted in the Director’s determination, VA treatment records showed that throughout the appeal period, the Veteran’s lower back disability and related lower extremity weakness have caused difficulty walking, standing and lifting his legs up. A review of his occupational and educational history showed that the Veteran was primarily suited to physical labor. In view of the totality of the evidence, the Board finds that the Veteran’s service-connected back disability and related lower extremity radiculopathy did as likely as not render him unemployable for the period prior to January 11, 2019. His educational and occupational history reflects that he has completed four years of high school, and he has no other education or training before becoming too disabled to work. Further, the Veteran’s entire working career appears to have been devoted to work as a laborer – work which involves physical exertion involving his back and lower extremities. The evidence does not reflect that the Veteran has ever held any other type of job. The medical records include limitations in lifting and bending and pain on prolonged standing. The Board finds the Veteran’s statements that his service-connected lumbar spine and radiculopathy disabilities impair his ability to perform substantial employment to be credible and consistent with the medical evidence of record. Affording the Veteran the benefit of the doubt, he is entitled TDIU for the appeal period prior to January 11, 2019, on an extraschedular basis. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.