Citation Nr: 21007002 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 10-42 893 DATE: February 8, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to September 7, 2010, to include on an extraschedular basis, is denied. FINDING OF FACT Prior to September 7, 2010, the Veteran’s service-connected disabilities did not prevent him from securing and following a substantially gainful occupation. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to September 7, 2010, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107, 7104; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19, 4.25 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Marine Corps from January 1979 to January 1983. This matter is on appeal from a June 2009 rating decision. The Veteran testified at a videoconference hearing in June 2014 before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the electronic claims file. In May 2015, July 2017, June 2020, and September 2020 this matter was remanded by the Board for further development. It is now ready for adjudication. TDIU The Veteran has been granted a TDIU as of September 7, 2010. Therefore, the issue of entitlement to a TDIU from September 7, 2010 is moot. However, the Veteran has reported that he has been unemployable due to his service-connected disabilities since 2008. See, November 2011 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability and June 2014 Video Conference Hearing Transcript. VA regulations allow for the assignment of a total disability rating based on individual unemployability when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, and the veteran has certain combinations of ratings for service-connected disabilities. If there is only one such disability, that disability must be ratable at 60 percent or more. If there are two or more disabilities, there must 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. Marginal employment is not considered substantially gainful employment and is deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment also may be held to exist on a facts-found basis when earned annual income exceeds the poverty threshold. Such situations may include, but are not limited to, employment in a protected environment such as a family business or sheltered workshop. 38 C.F.R. § 4.16 (a). Whether a veteran is capable of more than marginal employment must be considered even if the veteran is not working. See Ortiz-Valles v. McDonald, 28 Vet. App. 65, 70 (2016) (concluding that the terms “substantially gainful occupation” and “substantially gainful employment” in § 4.16 are “synonymous”). Where a Veteran is unemployable by reason of his or her service-connected disabilities, but they fail to meet the percentage standards set forth in § 4.16(a), TDIU claims should be submitted to the Director, C&P Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). The Board is precluded from assigning a TDIU rating on an extraschedular basis in the first instance. Instead, the Board must refer any claim that meets the criteria for referral for consideration of entitlement to TDIU on an extraschedular basis to the Director, C&P Service. Bowling v. Principi, 15 Vet. App. 1 (2001). The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. See VAOPGCPREC 75-91 (Dec. 17, 1991). The issue is whether the Veteran’s service-connected disability or disabilities preclude him from engaging in substantially gainful employment (i.e., work which is more than marginal, that permits the individual to earn a “living wage”). See Moore v. Derwinski, 1 Vet. App. 356 (1991). In a claim for TDIU, the Board may not reject the claim without producing evidence, as distinguished from mere conjecture, that the Veteran’s service-connected disability or disabilities do not prevent him from performing work that would produce sufficient income to be other than marginal. Friscia v. Brown, 7 Vet. App. 294 (1995), citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Court has held that the central inquiry in determining whether a Veteran is entitled to a total rating based on individual unemployability is whether service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities alone, is unable to secure or follow any form of substantially gainful occupation which is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. Prior to September 7, 2010, the Veteran is service-connected for a neck disability, rated 20% disabling; a left leg disability, right leg disability, and low back disability, each rated 10% disabling; and a right thigh disability, rated as noncompensable. The combined rating is 40%. Accordingly, the Veteran does not meet the minimum schedular requirements for TDIU. See 38 C.F.R. § 4.16 (a). Therefore, the only basis for the assignment of a TDIU is on an extraschedular basis. See 38 C.F.R. § 4.16 (b). Although the Veteran has not met the schedular percentage requirement prior to September 7, 2010, he may still be considered for a TDIU rating under 38 C.F.R. § 4.16(b) on an extraschedular basis, if unemployable by reason of service-connected disabilities that do not meet the percentage standards set forth in § 4.16(a). Rating boards should refer to the Director of the Compensation and Pension Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). His 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). Pursuant to the September 2020 Board remand, this matter was referred to the Director of Compensation and Pension Services (Director) on the issue of entitlement to an extraschedular TDIU prior to September 7, 2010. In this regard, the Board finds that there has been substantial compliance with the September 2020 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). In June 2020, the RO issued a memorandum recommendation for a denial of an extraschedular TDIU. In an October 2020 decision, the Director concluded that an extraschedular TDIU was not warranted. However, pursuant to Wages v. McDonald, 27 Vet. App. 233, 236 (2015), nothing in the language of 38 C.F.R. § 4.16(b) purports to limit the Board’s scope of review of the Director’s decision and that the Board shall be the final authority on all benefits decisions under 38 U.S.C. § 7104(a). As such, the Board will make its own determination regarding whether a TDIU on an extraschedular basis is warranted. Turning to the merits of the claim, records from the Social Security Administration (SSA) included an October 2000 statement from the Veteran which indicates that he stopped working in October 1999 due to asthma. An August 2001 SSA Disability Determination reflects a primary diagnosis of severe asthma and a disability date of October 1999. In a November 2011 VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, the Veteran indicated that he was unable to secure or follow any substantial gainful occupation due to his back and neck disabilities. He stated that he last worked full-time in October 1999. He was employed part-time working 25 hours a week from 2007 to 2008 in customer service and reported earning $13,000 in the past 12 months. He completed 4 years of college and school bus and computer training through vocational rehabilitation. VA treatment records dated in June 2013 indicate a post-service work history in industrial manufacturing, insurance sales, and employment with UPS. He had been in receipt of SSA for his asthma disability for more than 10 years and had not worked since 2009. In a March 2014 report, the Veteran stated that he stopped working 10 years prior due to health issues. A July 2015 report reflects employment as a logistics specialist and states that he was last employed in 1999 prior to receiving SSA benefits due to asthma. In November 2018, the Veteran presented with a history of employment in insurance sales, as a scheduler, expeditor, and in logistics, and an imaging clerk with his last reported gainful employment in 2000. In July 2013 a Vocational Expert stated that following the Veteran’s discharge from service he worked as a loader, film technician, dispatcher, apartment manager, and customer service representative. She opined that the Veteran had not been able to engage in any substantially gainful occupation since January 2008, due to chronic functional limitations related to his service-connected cervical spine disability and bilateral upper extremity disability, with frequent incapacitating episodes. The Vocational Expert concluded that the Veteran’s disabilities affected his ability to perform any substantial gainful occupation on a consistent basis. In June 2014, the Veteran testified that he was unable to work full-time due to his service-connected disabilities. His representative stated that the Vocational Expert opined that he could not perform work as of 2008 due to his cervical spine disability. Pursuant to the Board’s September 2020 remand, in an October 2020 opinion the Director of Compensation Service opined that considering the Veteran’s limitations due to his service-connected disabilities, in conjunction with his educational background and employment history, the evidence was not very clear that the Veteran’s cervical spine, lumbar spine, right and left sciatic and left thigh nerve disabilities would limit his ability to secure or follow gainful employment. The opinion was based on a consideration of the evidence of record, including the July 2013 Vocational Expert’s opinion and the SSA records and August 2001 Disability Determination which shows that benefits were awarded due to the Veteran’s asthma disability. The Director recommended that entitlement to TDIU prior to September 7, 2010, on an extraschedular basis, be denied since the evidence does not clearly support a finding that the Veteran was unemployable due to his service-connected disabilities. In December 2020, the Executive Director of Compensation Service issued an advisory opinion regarding extraschedular consideration for TDIU. The Executive Director noted that a review of the file shows that the Veteran reported that he last worked full-time in October 1999 and part-time in 2008. The SSA found the Veteran disabled due to asthma and alcohol dependence with a personality disorder. The medical evidence shows that the Veteran would be unable to do overhead work or lifting above the shoulder level. Additionally, he would be unable to do heavy lifting, carrying, pushing, pulling, or repetitive bending and twisting. The Executive Director opined that although his service-connected disabilities caused functional limitations, the preponderance of the evidence did not show that he was unable to obtain or maintain gainful employment due to his service-connected disabilities. The Executive Director determined that the evidence overall failed to support the contention that any of the Veteran’s service-connected disabilities or a combination of the effects of those disabilities prevented employment and that entitlement to TDIU prior to September 7, 2010. Accordingly, the award of TDIU prior to September 7, 2010, on an extraschedular basis, is not established. After a careful review of the lay and medical evidence record, the Board finds that the preponderance of the evidence is against the award of a TDIU rating on an extraschedular basis, prior to September 7, 2010. While the Board does not disagree that his service-connected disabilities impacted his ability to work to some degree, the Board finds that the preponderance of the evidence is against a finding that the service-connected disabilities prevented him from securing or following a substantially gainful occupation prior to September 7, 2010. The Board finds that the preponderance of the evidence is against a finding that the Veteran was precluded from securing or following substantial gainful employment prior to September 7, 2010. In this case, the Board finds that the Director’s October 2020 opinion and Executive Director’s December 2020 advisory opinion provide highly probative and overwhelming evidence against this claim. The Director and Executive Director reviewed the claims file and considered the Veteran’s documented and reported history. Based on that review, they found that the Veteran was not unemployable due to his service-connected disabilities prior to September 7, 2010. Their opinions provide probative evidence against the Veteran’s claim of high probative weight. See Nieves -Rodriguez v. Peake, 22 Vet. App. 295 (2008). In making this determination, the Board acknowledges that the July 2013 Vocational Expert opined that the Veteran was unemployable due to his service-connected cervical spine disability and associated bilateral upper extremity disability. However, the opinion is not shown to have been based on a review of the Veteran’s case as a whole. See Prejean v. West, 13 Vet. App. 444, 448-9 (2000). It is true that a review of the claims failure or lack thereof does not control the probative value of a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). However, this opinion warrants less probative weight as the Vocational Expert’s opinion did not address the SSA records which show that prior to September 7, 2010, the Veteran was determined to be unemployable due to his non-service connected asthma disability. In considering whether TDIU is warranted prior to September 7, 2010, the Board has also considered the Veteran’s statements and testimony that his service-connected disabilities made him unemployable. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36 (1994); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Competency of evidence differs from weight and credibility. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67 (1997); Layno v. Brown, 6 Vet. App. 465 (1994); Cartright v. Derwinski, 2 Vet. App. 24 (1991) (although interest may affect the credibility of testimony, it does not affect competency to testify). The Veteran is competent to report symptoms because that requires only personal knowledge as it comes to him through his senses. Layno, supra. However, he is not competent to identify to the extent to which service-connected disabilities make him unemployable according to the pertinent VA regulations. Those determinations require training, which the Veteran is not shown to have. Overall, the evidence of record does not show that the Veteran was precluded from securing or following substantially gainful employment as a result of his service-connected disabilities in order to warrant TDIU prior to September 7, 2010. As such, the preponderance of the evidence is against the Veteran’s claim, and the benefit of the doubt rule does not apply. Therefore, entitlement to a TDIU prior to September 7, 2010, including on an extraschedular basis, is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). (Continued on the next page)   KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T. Adams, 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.