Citation Nr: 21007101 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 16-01 663 DATE: February 8, 2021 ORDER An effective date of March 14, 2012, and no earlier, for the assignment of a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis, is granted. FINDINGS OF FACT 1. An inferred claim of entitlement to a TDIU was received by VA on March 14, 2012 and a formal claim for entitlement to a TDIU was received by VA in October 2014; the Veteran first became eligible for a TDIU on a schedular basis on July 2, 2014. 2. Since March 14, 2012, the evidence demonstrates that the Veteran’s service-connected disabilities preclude all forms of substantially gainful employments CONCLUSION OF LAW The criteria for an effective date of March 14, 2012, and no earlier, for the assignment of a TDIU have been met on an extraschedular basis. 38 U.S.C. §§ 5101 (a), 5103A, 5107, 5110; 38 C.F.R. §§ 3.1 (p)(r), 3.155, 3.156, 3.157, 3.159, 3.321(b), 3.341, 3.400(o)(2), 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from June 1996 to November 1998. This matter is before the Board of Veterans’ Appeals (Board) on appeal from September 2013 and May 2015 rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Specifically, the September 2013 rating decision, in part, granted service connection for left upper extremity (LUE) numbness and the May 2015 rating decision denied a TDIU. The Veteran perfected appeals of both of these decisions. A November 2018 Board decision, in relevant part, denied a TDIU. The Veteran appealed the Board’s November 2018 decision to the United States Court for Veterans Claims (CAVC). In an August 2019 Joint Motion for Partial Remand (JMPR), which was granted in September 2019, the November 2018 Board denial of a TDIU was vacated as the decision did not comply with the components set forth in Ray v. Wilkie, 31 Vet. App. 58 (2019). Subsequently, in September 2020, the Board granted a TDIU effective July 2, 2014 and remanded the issue regarding entitlement to a TDIU prior to July 2, 2014 for additional development. An effective date of March 14, 2012, and no earlier, for the assignment of a TDIU on an extraschedular basis, is granted. By way of history, the Veteran filed a claim for service connection for LUE numbness on March 14, 2012.  In a September 2013 rating decision, the RO, in part, granted service connection for LUE numbness, assigning a 10 percent disability rating effective March 14, 2012.  The Veteran disagreed with this decision and perfected an appeal. The Veteran submitted a formal claim for a TDIU in October 2014, indicating that his service-connected disabilities of the left wrist, scars, and LUE as well as his newly service-connected posttraumatic stress disorder (PTSD), affected his ability to perform full-time employment. As above, by rating decision dated in May 2015, the RO denied a TDIU, and the Veteran perfected an appeal of this decision as well. Notably, in August 2020 correspondence, the Veteran’s attorney argued that, while the Veteran did not submit a formal claim for a TDIU until October 2014, the TDIU claim was part of the increased rating appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Thereafter, by rating decision dated in December 2020, the RO granted a TDIU effective July 2, 2014, the date that the Veteran met the schedular criteria for a TDIU and remanded the issue of entitlement to a TDIU prior to July 2, 2014. As such, the Veteran’s claim for a higher initial rating for LUE disability has been pending since March 14, 2012 and the issue of entitlement to a TDIU prior to July 2, 2014 is still before the Board. The Board has accepted jurisdiction of the TDIU claim pursuant to Rice on the basis of the March 14, 2012, claim for service connection for LUE numbness. Having determined that March 14, 2012 is the date of claim for purposes of assigning an effective date, the Board must now look to the evidence to determine whether it was “factually ascertainable” that the criteria for a total rating were met beginning March 14, 2012.  TDIU ratings for compensation may be assigned, where the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities.  38 C.F.R. §§ 3.340 and 4.16(a).  If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one 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 sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain and retain employment.  The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment.  Van Hoose v. Brown, 4 Vet. App. 361 (1993).  Factors to be considered are the veteran’s employment history and his educational and vocational attainment. Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991).  Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16 (a).  It is clear from the language of this regulation that what is contemplated as marginal employment is employment that does not accord the veteran a living wage.  See Moore (Robert) v. Derwinski, 1 Vet. App. 356 (1991) [for the purposes of 38 C.F.R. § 4.16 (a), substantially gainful employment suggests a living wage].  Marginal employment may also be considered to exist when income exceeds the poverty threshold but is earned, for example, in a protected environment, such as a family business or sheltered workshop. Id.  Consideration shall be given in all claims to the nature of the employment.  It is the established policy of VA 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.  Therefore, rating boards should submit to the Director, Compensation Service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. § 4.16(b).  The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance.  Bowling v. Principi, 15 Vet. App. 1 (2001).  In this case, the Veteran is currently service connected for the following disabilities: PTSD, evaluated at 50 percent disabling; LUE radiculopathy, evaluated at 40 percent disabling; degenerative disc disease and spondylosis of the cervical spine, evaluated at 10 percent disabling; broken left wrist, evaluated at 0 percent disabling; deep non-linear scars of the left arm, evaluated at 0 percent disabling; and superficial non-linear scar of the left arm, evaluated at 0 percent disabling. Significantly, a TDIU has been assigned as of July 2, 2014, the date the Veteran met the schedular criteria for a TDIU pursuant to under 38 C.F.R. § 4.16 (a).  However, there is evidence that the Veteran was unemployable due to his service-connected disabilities as early as December 2011. In his application for a TDIU, received in October 2014, Veteran indicated that his service-connected disabilities affected his ability to perform full-time employment as of March 1, 2013. With regard to educational background, it was noted that the Veteran had completed one year of college. The Veteran later clarified in an August 2020 application for a TDIU that he became too disabled to work full-time in December 2011. This second TDIU application shows very sporadic employment. Specifically, it was noted that the Veteran worked full-time as a telemarketer from May to December 2011; worked full-time from September 2013 to February 2014 and again from April 2016 to July 2016 as an HVAC technician; and, most recently, worked full-time from May 2020 to August 2020 in a sales position. A review of the record also shows that the Veteran received an HVAC certification in August 2013. In an August 2020 statement, the Veteran indicated that he does not have experience working at a desk job, and that he has difficulty using a computer and keyboard due to his wrist and neck disabilities. He specifically sought training as an HVAC technician in order to work independently with limited interaction with other people. The Veteran worked as a HVAC technician for two periods of a few months, during which the Veteran described being stressed and easily startled by people passing by as he worked. Additionally, the Veteran indicated that he would accidentally drop tools due to his service-connected wrist disability and endorsed homicidal thoughts whenever anyone commented on him dropping his tools. The Veteran described losing his job as an HVAC technician due to a workplace injury, wherein he had difficulty aligning his tools due to numbness associated with his service-connected wrist injury, causing him to fracture his finger. The Veteran also indicated that he has not driven his vehicle in several years because his PTSD interferes with his sleep, which exacerbates his anxiety and hypervigilance while driving to work. Turning to the medical evidence, in a December 2014 VA psychiatric examination, the clinician remarked that the Veteran has significant PTSD symptoms that interfere with his occupational productivity and reliability. The clinician opined that the Veteran’s PTSD does not preclude him from maintaining gainful employment, noting that the Veteran is capable of working in a low-stress work environment where he had limited interaction with other people and could work independently. In a December 2014 VA cervical spine examination, the clinician remarked that the Veteran’s cervical spine condition impacts his ability to work. Specifically, the Veteran’s overhead work is limited by his neck condition. The clinician indicated that the Veteran is not limited from sedentary labor. Pursuant to the September 2020 Board remand, the Veteran’s claim was referred to the Director of Compensation Service by the RO for extraschedular consideration and, in December 2020, the Director determined that an extraschedular TDIU prior to July 2, 2014 was not warranted finding that, while the Veteran had limitations caused by his service-connected conditions during the time period in question, the cumulative evidence does not support that any service-connected condition, alone or in conjunction, would have precluded all forms of substantially gainful activity, including in a sedentary or semi-sedentary environment. Specifically, it was noted that the Veteran’s PTSD was reported to result in a decrease in productivity due to anxiety, hypervigilance and outbursts in anger, but the records show that the Veteran was able to perform well while working independently and did not have disciplinary problems or excessive absenteeism while working. The records also indicate that the wrist condition and residual scars to the left arm would not have impaired the Veteran’s ability to perform occupational tasks. The records do not show the Veteran’s service-connected conditions prior to July 2, 2014 would have resulted in total occupational impairment or would have prevented the Veteran from maintaining substantially gainful employment. The Board finds that the Veteran’s employment during the relevant appeal period beginning March 14, 2012 has not been substantially gainful. Although the Veteran has training as an HVAC technician, his service-connected neck disability precludes him from overhead physical labor required by this occupation. Further, the Veteran’s psychiatric disability impairs his ability to be around other people due to his hypervigilance. Ray, 31 Vet. App. at 73. Upon review of all lay and medical evidence, and after affording the appellant the benefit of the doubt, the Board finds that the Veteran’s level of disability, given his education, training, and experience, would have rendered it impossible for the average person to obtain or retain substantially gainful employment of some type based solely on his service-connected disabilities. Van Hoose, 4 Vet. App. at 363. The evidence demonstrates that the Veteran’s service-connected disabilities, collectively, render him unable to work in physical labor, particularly as an HVAC technician. Additionally, the Veteran is effectively unable to work in a sedentary work environment, as he has difficulty using a computer and keyboard due to his service-connected neck and wrist disabilities, and is unable to interact effectively with other people due to his service-connected psychiatric disability. As such, the Board finds that the Veteran had been rendered unemployable by his service-connected disabilities since March 14, 2012.  While the Director found that the Veteran’s service-connected disabilities do not make him unemployable prior to July 2, 2014, based on the medical evidence discussed above particularly the opinions of the December 2014 VA examiners,  the Board finds that the Veteran had been rendered unemployable by his service-connected disabilities since March 14, 2012. Therefore, an extraschedular TDIU from March 14, 2012, to July 1, 2014, is granted. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board April Maddox, 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.