Citation Nr: 21008014 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 19-13 279 DATE: February 11, 2021 ORDER Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) prior to July 10, 2018 is granted. FINDING OF FACT Resolving reasonable doubt in the Veteran’s favor, he is rendered unemployable as the result of his service-connected disabilities prior to July 10, 2018. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an extraschedular TDIU have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from July 1962 to June 1964. This matter comes before the Board of Veterans’ Appeals (Board) from an April 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the Veteran’s claim in August 2020 to the Director of Compensation for extraschedular consideration. The Director of Compensation denied the Veteran’s TDIU claim on an extraschedular basis in November 2020. The Board notes that the aforesaid decision is not evidence, but is rather akin to a de facto AOJ decision, and the Board must conduct de novo review of this decision. Wages v. McDonald, 27 Vet. App. 233, 238-39 (2015) (holding that the Board conducts de novo review of the Director's decision denying extraschedular consideration). The Court reaffirmed that the Board has jurisdiction to review the entirety of the Director's decision denying or granting an extraschedular rating and elaborated that the Board is authorized to assign an extraschedular rating when appropriate. See Kuppamala v. McDonald, 27 Vet. App. 447, 456-57 (2015). 1. Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) prior to July 10, 2018 The Veteran contends that his service-connected disabilities rendered him unemployable prior to July 10, 2018. See May 2020 Motion for Reconsideration. For the period on appeal, the Board finds that the evidence of record weighs in favor of a finding that the Veteran is precluded from securing and maintaining substantially gainful employment in a physical capacity. See September 2011 VA examination reports. Rather the issue that the Board must decide is whether the Veteran is capable of sedentary employment for the period on appeal, given the totality of his circumstances. The Court has held that because VA does not define "sedentary employment" in its regulations for a TDIU, the Board must determine the meaning on a case-by-case basis. Withers v. Wilkie, 30 Vet. App. 139 (2018). In Ray v. Wilkie, the Court held that "[i]n determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to": (1) The veteran's history, education, skill, and training; (2) Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue, in which 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 (3) Whether the veteran has the mental ability to perform the activities required by the occupation at issue, in which 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. Additionally, the Court held that, "[b]y discussing [the] potentially relevant factors, we don't create a checklist that must be run completely through in every case. Instead, discussion of any factor is only necessary if the evidence raises it." Id. at 62. The record reveals that the Veteran has not worked since May 2000. See October 2016 VA Form 21-8940; November 2008 Board hearing testimony. Upon remand, the Director of Compensation opined that the while the Veteran had limitations caused by 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 prior to July 10, 2018. The Board finds that contrary to the Director’s opinion, the record does support a finding that the Veteran’s service-connected disabilities precluded him from performing sedentary work prior to July 10, 2018. To point, the Veteran submitted an October 2016 statement, received in November 2016, indicating that he now suffers from extreme pain in his left rotator cuff, right rotator cuff, cervical spine, and lumbar spine, all of which are service-connected for the period on appeal. As it relates to the Veteran’s claim for an extraschedular TDIU, the Veteran indicated that he is not able to work due to flare-ups of pain and having very limited ability in getting around relative to the pain he experiences. More specifically, the Veteran stated relative to his left rotator cuff he experiences pain when raising his left arm above his head. For the right rotator cuff, the Veteran indicated that he experiences extreme pain when he raises his right arm above his head. Relative to his lumbar spine pain, the Veteran indicated that he is unable to sit for more than 45 minutes. The Board finds the aforesaid statements to be competent, as well as probative, as pain is lay observable. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Additionally, these same reports are reflected in the July 2018 private medical examinations, of which served as the basis for granting a schedular TDIU from July 10, 2018 to present. See July 2018 private medical examinations (“cannot bend, stoop, walk, lift, carry, sit, stand without pain”); see also See May 2020 Motion for Reconsideration. Given these reasons, in affording the Veteran the benefit of the doubt, TDIU on an extraschedular basis prior to July 10, 2018, is warranted and the claim is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). K. J. ALIBRANDO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S.R. Fey, Associate 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.