Citation Nr: 21008329 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 16-28 712 DATE: February 16, 2021 ORDER A total disability rating due to individual unemployability (TDIU) on a schedular basis from November 8, 2017 is granted. TDIU prior to December 1, 2016 is denied. REMANDED TDIU on an extra-schedular basis from December 1, 2016 to November 7, 2017 is remanded. FINDINGS OF FACT 1. The Veteran’s previously service-connected disabilities have prevented the Veteran from securing and maintaining substantially gainful employment from December 1, 2016, and the Veteran has met the schedular requirements for TDIU from November 8, 2017. 2. The Veteran’s previously service-connected disabilities have not prevented the Veteran from securing and maintaining substantially gainful employment prior to December 1, 2016. CONCLUSIONS OF LAW 1. The criteria for TDIU from November 8, 2017 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16(a). 2. The criteria for TDIU to including on an extra-schedular basis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Army from May 1969 to March 1971. These matters come to the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This appeal is being adjudicated under the legacy appellate framework. The Veteran testified at a personal hearing before the Board on April 2018, and a transcript of the hearing is of record. This matter was previously before the Board, and, in February 2020 and in June 2020, the Board remanded these matters for further development. Further development in substantial compliance with the Board’s previous remand instructions has been completed. 1. TDIU on a schedular basis from November 8, 2017 is granted. 2. TDIU prior to December 1, 2016 is denied. At issue is whether the Veteran is entitled to TDIU. The weight of the evidence indicates that the Veteran is entitled to TDIU from November 8, 2017, but that the Veteran is not entitled to TDIU prior to December 1, 2016. The Veteran first filed for service connection for hearing loss in July 2012, and, in August 2013, the RO granted service connection and assigned an initial disability rating. The Veteran appeal his initial disability rating. The Veteran’s hearing loss claim was disposed on in June 2020, but TDIU was raised by the record during the pendency of the appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is assigned when the Veteran’s previously service-connected disabilities prevent the Veteran from securing and maintaining substantially gainful employment. 38 C.F.R. § 4.16. Normally, TDIU will only be assigned if the Veteran meets certain schedular requirements: a single disability that is at least 60 percent disabling; or a single disability rating that is at least 40 percent disabling if the Veteran has been assigned a combined disability rating of at least 70 percent. Multiple individual disabilities will be considered a single disability for the purposes of assigning TDIU if: they effect reciprocal extremities; if due to a common etiology or accident; if they effect a single bodily system (e.g. neuropsychiatric system); if they were incurred due to being a prisoner of war; or if multiple injuries were sustained in action. 38 C.F.R. § 4.16(a). TDIU may be granted on an extra-schedular basis however for Veterans who do not meet the schedular criteria, but the Board may not make such a determination in the first instance; rather the Director, Compensation Service must make such a determination in the first instance. 38 C.F.R. § 4.16(b). The most recent Rating Decision Code Sheet indicates that the Veteran has been granted service connection for posttraumatic stress disorder effective August 28, 2013; a back disability effective June 21, 2012; radiculopathy of the sciatic and femoral nerves of the bilateral lower extremities effective February 12, 2020; tinnitus effective June 21, 2012; and hearing loss effective June 21, 2012. The Veteran was assigned a combined disability rating of 40 percent prior to November 8, 2017. From November 8, 2017 to September 3, 2019, the Veteran’s assigned disability ratings included the following neuropsychiatric disabilities: a disability rating of 50 percent for PTSD and a disability rating of 10 percent for tinnitus. See October 2020 Rating Decision Code Sheet. The Veteran meets the schedular criteria for TDIU from November 8, 2017 to present, but the Veteran does not meet the schedular criteria for TDIU prior to November 8, 2017. As discussed above, the Veteran’s combined disability rating was 40 percent prior to November 8, 2017, and thus the Veteran did not manifest a either a combined disability rating that was at least 70 percent or a single disability that was at least 60 percent disabling. 38 C.F.R. § 4.16(a). As discussed above however, the Veteran’s disability ratings from November 8, 2017 to present included: a disability rating of 50 percent for PTSD and a disability rating for tinnitus. Therefore, the Veteran manifested a single disability that was at least 60 percent disabling for the purposes of the schedular criteria for TDIU, because tinnitus and PTSD both effect the neuropsychiatric system; Id; and the combined disability rating for a disability rating of 50 percent and a disability rating of 10 percent is 60 percent. 38 C.F.R. § 4.16. Therefore, the Veteran meets the schedular criteria for TDIU from November 8, 2017; but no earlier. The Veteran filed a claim for TDIU in January 2020. The Veteran indicated that he had been employed until October 2020, and he claimed that on December 1, 2016 he became too disabled to work. The Veteran reported that he was a high school graduate without any college education, and that he had not had any training or education since he became too disabled to work. The Veteran claimed that his PTSD and his back injury were primarily responsible for limiting his ability to work. The Veteran submitted an employability evaluation completed by a private provider in January 2020. The Veteran reported that after separating from the military he worked as a warehouse worker and that he was eventually promoted to a management position. The Veteran indicated that he was working as a manager until March 2016 when he retired due to his back problems. The Veteran also indicated that, thereafter, he attempted to get part time work as a salesman, but that he left; because his back prevented him from standing for the hours that the job required of him. The provider opined that it was more likely than not that the Veteran’s back disability, PTSD, tinnitus, and hearing loss prevent the Veteran from securing and maintaining substantially gainful employment. The weight of the evidence indicates that the Veteran was incapable of securing and maintaining substantially gainful employment since December 1, 2016. The Veteran has provided a signed statement in which he alleged that his previously service-connected back disability and PTSD prevented him from working since December 1, 2016. The Board finds the Veteran’s statements credible and affords them great weight. Caluza v. Brown, 7 Vet. App. 498 (1995). Moreover, the Veteran’s reports are corroborated by an expert opinion indicating that the Veteran has been unemployable due to the Veteran’s previously service-connected disabilities since at least December 1, 2016. The opinion is based on the application of sufficient fact and data to reliable principles and methods, and the Board affords it great weight. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Board is cognizant that the record contains a number of VA medical opinions indicating that the Veteran is capable of securing and maintaining substantially gainful employment. Nevertheless, the Board cannot afford these opinions much weight. First, the Board notes that these medical opinions focused on the occupational impact of individual disabilities rather than the Veteran’s entire disability picture. 38 C.F.R. § 4.7. Second, the Board notes that the negative VA medical opinions, particularly the November 2020 and the December 2020 VA medial opinions, rely heavily on a distinction between sedentary and non-sedentary employment; which the examiners failed to define. See Withers v. Wilkie, 30 Vet. App. 139 (2018) (holding that, as sedentary labor is not defined by VA regulations, what sedentary labor means must be analyzed on a case by case basis). All in all, the evidence is sufficient to place a reasonable fact finder at least in a state of equipoise (if not outright leaning towards the Veteran), and the tie must go to the Veteran. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the weight of the evidence of record indicates that the Veteran’s previously service-connected disabilities prevented the Veteran from securing and maintaining substantially gainful employment from December 1, 2016; the date the Veteran alleged he became too disabled to work. The Veteran is entitled to TDIU on a schedular basis from November 8, 2017, but the Veteran is not entitled to TDIU prior to December 1, 2016. As discussed above, the Veteran’s previously service-connected disabilities prevented the Veteran from securing and maintaining substantially gainful employment from December 1, 2016, and the Veteran has met the schedular criteria for TDIU from November 8, 2017. Therefore, the Veteran is entitled to TDIU from November 8, 2017 to present, because his previously service-connected disabilities meet the schedular criteria and prevent substantially gainful employment during this period of time. The Veteran is not entitled to TDIU prior to December 1, 2016, because the Veteran’ previously service-connected disabilities do not prevent the Veteran from securing and maintaining substantially gainful employment before this date. Here, the weight of the probative evidence of record indicates that the Veteran is entitled to TDIU on a schedular basis from November 8, 2017; but no earlier. Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, TDIU on a schedular basis from November 8, 2017, but no earlier, is granted. REASONS FOR REMAND TDIU on an extra-schedular basis from December 1, 2016 to November 7, 2017 is remanded. As discussed above, the Veteran’s previously service-connected disabilities prevented the Veteran from securing and maintaining substantially gainful employment from December 1, 2016 to November 7, 2017, but the Veteran did not meet the schedular criteria for TDIU during this period of time. The Veteran can be assigned TDIU on an extraschedular basis, but the Board may not make such a finding in the first instance. Rather this matter must be referred to the Director, Compensation Service for such a determination. The matters are REMANDED for the following action: Refer the matter of TDIU on an extra-schedular basis   from December 1, 2016 to November 7, 2017 to the Director, Compensation Service. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Seaton 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.