Citation Nr: 21007546 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 09-22 306 DATE: February 9, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), on an extraschedular basis under 38 C.F.R. § 4.16(b) from January 25, 2008 to May 24, 2010 is granted. FINDING OF FACT It is as likely as not that the Veteran’s service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation from January 25, 2008 to May 24, 2010. CONCLUSION OF LAW From January 25, 2008 to May 24, 2010, the criteria for entitlement to TDIU are satisfied. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.158, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Navy from February 2003 to January 2008. Total disability ratings for compensation based on individual unemployability may be assigned where the scheduler rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment, and generally shall be deemed to exist when a veteran’s earned 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 may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). The central inquiry 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). Consideration may be given to the Veteran's education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims) (Court) discussed the meaning of “substantially gainful employment.” In this context, it noted the following standard announced by the United States Federal Court of Appeals in Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975): It is clear that the claimant need not be a total ‘basket case’ before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. A claim for TDIU is, in essence, a claim for an increased rating. Norris v. West, 12 Vet. App. 413, 420-21 (1999). Such a claim is an alternate way to obtain a total disability rating without recourse to a 100 percent evaluation under the rating schedule. The Court has defined being unable to secure and follow a substantially gainful occupation as having an 1) an economic component of earning more than marginal income (outside of a protected environment as determined by the U.S. Department of Commerce as the poverty threshold for one person and 2) a non-economic component of the individuals ability to secure or follow that type of employment; factors to consider include: the Veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Ray v. Wilkie, 31 Vet. App. 58, 62 (2019). Factors that may be relevant include, but are not limited to, the Veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the Veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle work place stress, get along with coworkers, and demonstrate reliability and productivity.) In an April 2012 rating decision, the Veteran was granted TDIU, effective May 24, 2010. The Veteran contends, however, that his service-connected disabilities prevented him for obtaining and maintaining substantially gainful employment prior to May 24, 2010. Prior to May 24, 2010, the Veteran was service-connected for PTSD rated as 50 percent disabling, status post right lower leg shrapnel wound rated as noncompensable, lumbar spine degenerative disc disease rated as 10 percent disabling, hiatal hernia rated as 10 percent disabling, bilateral plantar fasciitis rated as noncompensable, residuals of septoplasty surgery rated as noncompensable, bilateral tinea pedis rated as noncompensable and right carpal tunnel syndrome rated as noncompensable. His combined evaluation was 60 percent. The 60 percent rating does not meet the minimum percentage rating required for consideration of assignment of TDIU.38C.F.R.§4.16(a). Nevertheless, in exceptional circumstances, where the veteran does not meet the aforementioned percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38C.F.R.§4.16(b). Here, the evidence shows that during the February 2008 VA examination it was noted that the Veteran was not working because he just got of the Navy and that in an August 2007 note he was diagnosed with occupational problems. The Veteran was symptomatic for PTSD, and it was noted that he reported that some of his medications caused trouble to include sleeping a lot during the day and feeling tired. It was noted that the Veteran worked in construction prior to service and that his highest level of education was high school. The examiner found that, at that time, the Veteran would experience some problems at work until his medications are adjusted and he began individual therapy. During the May 2010 VA examination, it was noted that the Veteran’s lumbar spine disability caused functional impairment that included pain with prolonged standing, walking and sitting. In another May 2010 VA examination, the VA examiner stated that the Veteran’s unemployment was due to the effects primarily from his mental condition because the Veteran had become less tolerant toward others and more aggressive. The examiner found that the Veteran had difficulty establishing and maintaining effective work/school and social relationships and that because of his condition he would continue to have significant difficulties in maintaining full time work. In August 2020, the Veterans Service Center Manager recommended that a grant of individual unemployability based on an extra-schedular basis was warranted effective January 25, 2008. It was noted that the Veteran had not been able to secure or maintain gainful employment since he separated from service due to his symptoms of posttraumatic stress disorder with alcohol abuse. In a November 2020 Advisory Opinion, however, the Executive Director of Compensation Service determined that the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented employment prior to May 24, 2010. It was noted that the Veteran separated from military service in January 2008 and that the Veteran reported unemployment following separation from service. The Director found that the records from the period of time after separation from military service until May 2010 do not suggest the Veteran's conditions at that time was so severe as to have prevented the Veteran's ability to maintain employment. It was found that entitlement to extra-schedular TDIU benefits was not established. Given the evidence discussed in the VA compensation examinations, the VA treatment records and the lay statements, and in resolving reasonable doubt in the Veteran’s favor, the Board finds that the criteria for TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b) are met from January 25, 2008 to May 24, 2010. The Board is mindful of the opinion of the C and P Director. The Board, however, is not bound by the opinion of the Director C&P. Wages v. Shinseki, 27 Vet. App. 233 (2015). The Board acknowledges that it is likely that when the Veteran’s service-connected disabilities are separately evaluated they may not be of such severity to prevent substantially gainful employment. The Board finds, however, that the cumulative effect of his service-connected disabilities, which include limitations of his psychiatric, orthopedic and neurologic systems, more likely than not prevented the Veteran from engaging in a substantially gainful occupation for which he was trained and skilled at that time. Stated differently, there is nothing in this record that establishes that the Veteran could have returned to a substantially gainful occupation for which he was skilled and trained from January 25, 2008 to May 24, 2010. Furthermore, it is his service-connected disabilities that precluded such substantially gainful employment. As such, the Board concludes that the criteria for a TDIU on an extraschedular basis under 38 C.F.R. § 4.16 (b) are met from January 25, 2008 to May 24, 2010 and the benefit sought on appeal is granted. T. MAINELLI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board T.S. Willie 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.