Citation Nr: 21009198 Decision Date: 02/19/21 Archive Date: 02/19/21 DOCKET NO. 17-39 590 DATE: February 19, 2021 ORDER Entitlement to a total disability rating for individual unemployability (TDIU) from March 7, 2016 to January 17, 2019 is granted. FINDING OF FACT The evidence shows that the Veteran’s service-connected disabilities alone preclude all substantially gainful employment for which his educational and occupational experience would otherwise qualify him from March 7, 2016 to January 17, 2019. CONCLUSION OF LAW The criteria for a TDIU due to service-connected disabilities from March 7, 2016 to January 17, 2019 are met. 38 U.S.C. § 1155, 5107(b) (2012); 38 C.F.R. § 3.340, 3.341, 4.16(b) (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service in the United States Army from September 1960 to August 1963. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge at a June 2018 videoconference hearing and a transcript of the hearing has been associated with the electronic record. Entitlement to a total disability rating for individual unemployability (TDIU) The VA received the Veteran’s claim for a TDIU based on his service-connected disabilities on March 7, 2016. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. § 3.340, 3.341, 4.16. 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). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). However, even when the percentage requirements under 38 C.F.R. § 4.16(a) are not met, a TDIU on an extraschedular basis may nonetheless be granted in exceptional cases, pursuant to specially prescribed procedures, when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b). The Board is prohibited from assigning a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim is first referred to VA's Director of Compensation (Director) for consideration of an extraschedular TDIU. Bowling v. Principi, 15 Vet. App. 1 (2001); 38 C.F.R. § 4.16(b). The Veteran filed his claim for a TDIU in March 2016 listing diabetes, shoulder, spine and neuropathy as his service-connected disabling conditions that prevented employment. He indicated that he had become too disabled to work in 2002. The Veteran’s subsequent April 2016 VA Form 21-4192 indicated that he was a self-employed farmer who had earned no compensation during the 12 months preceding his last date of employment in June 2013. At that time the Veteran was service connected for degenerative disc disease at 20 percent, left knee osteoarthritis at 10 percent, right knee osteoarthritis at 10 percent, tinnitus at 10 percent, radiculopathy of left lower extremity at 10 percent, and radiculopathy of the right lower extremity at 0 percent for a combined evaluation of 50 percent. Therefore, the Veteran did not meet the basic percentage requirements for eligibility for consideration for the grant of TDIU under 38 C.F.R. § 4.16(a). Accordingly, in February 2019 the Board remanded the claim for a TDIU for extraschedular consideration by the Director of the Compensation Service (Director). The Veteran's statements indicate that the Veteran completed high school and that he was a self-employed farmer prior to service, and this is the only type of work that he has ever known. At his June 2018 hearing, the Veteran testified that he has been unable to work since he separated from service in the 1960s due to problems with his back and leg. He wanted to work but was unable to stand or lift. He was supported by his schoolteacher wife for the first 15 years after service and then was divorced. He then moved in with his elderly parents and took care of them until they passed away. He received social security disability income. Until recently he was unaware that VA benefits were available. The Veteran lives alone and spends his day sitting on the porch, moving from the house to the yard and periodically laying down during the day to take the pressure off his leg. The Veteran discontinued prescription pain medication about 10 years before and was using a variety of other non-prescription pain relievers. His back and leg on the left side keep him from working. He denied that his high blood pressure, stomach or gallbladder issues affected his working. In March and December 2019 respectively, the Veteran was granted increased ratings for radiculopathy of left lower extremity to 40 percent, radiculopathy of the right lower extremity to 20 percent, and right knee osteoarthritis to 30 percent for a combined evaluation of 90 percent effective January 17, 2019. Accordingly, the Veteran was then entitled to consideration of a schedular TDIU with a combined rating of 70 percent or higher which included at least one single disability with a rating of 40 percent or higher. In November 2020, the RO granted the Veteran a TDIU effective January 17, 2019, the date the Veteran became entitled to consideration of a schedular TDIU and that the evidence showed that the Veteran was unemployable due to his service-connected disabilities. Also in November 2020, the Director of Compensation issued an advisory opinion that noted the Veteran cannot perform prolonged sitting, standing or walking due to symptoms of stiffness, limited range of motion, weakness, and easy fatigability due to the spine condition, radiculopathy, and knee conditions. The Director further commented that the American workplace has had a dramatic shift in the labor force over the last several decades such that Americans generally have less strenuous jobs compared to those of years ago due in part to the increasing reliance on computers, the Internet and e-mail. As such, she concluded that there was no evidence showing that the Veteran was incapable of sedentary work which a person with a high school education would be capable of performing in an environment with modifications such as a sit/stand desk. She 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 support an exceptional situation that prevented gainful employment for the Veteran prior to January 17, 2019. As the November 2020 rating decision granting a TDIU from January 17, 2019 was not a full grant of benefits, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran's 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). The Board points out that although it is required to obtain the Director's decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director's decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511 (a), 7104(a); 38 C.F.R. § 4.16(b)). Therefore, the TDIU issue prior to January 17, 2019 is now before the Board and can be addressed on the merits. Cf. Anderson v. Shinseki, 22 Vet. App. 423, 427 (2009) ("[T]here is no restriction on the Board's ability to review the denial of an extraschedular rating [under 38 C.F.R. § 3.321 (b)(1)] on appeal"). Marginal employment shall not be considered substantially gainful employment. Marginal employment 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 (including 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. 38 C.F.R. § 4.16(a). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the Court defined the term "unable to secure and follow a substantially gainful occupation" as having two components: one economic and one noneconomic. The economic component means an occupation 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. The non-economic component includes consideration of: the Veteran's history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. In November 2020 VA received lay statements from the Veteran and his daughter. The Veteran’s daughter indicated that her father has not performed any other work than that of a farm laborer and has never even touched a computer. His home does not have cable or satellite television and he does not have access to the internet or own a smartphone. She stated that she is familiar with the employment opportunities in the rural area in which she and her father live. Her father is not capable of learning new skills due to his poor hearing and eyesight, advancing age and overall unfamiliarity with modern technology. Realistically there are no work options for the Veteran other than the physically demanding farm work that he cannot do. (Continued on the next page)   The Veteran explained that he has never owned or used a computer, he cannot type or operate office equipment, is hard of hearing had has a hard time understanding people on the phone and knows nothing about working in an office setting. He still lives in the home in which he was born, and the area has not changed much during his lifetime. The only jobs for persons like the Veteran, who has a high school education and no ability to perform office work, are physically demanding jobs like farm work or working in a chicken processing plant, which is work that he physically cannot do. The Board notes that regulations require that the Veteran’s non service-connected conditions, including his poor eyesight and advancing age, cannot be considered in evaluating entitlement to a TDIU. For all other reasons provided above, the Board concludes that the duration and severity of the symptoms of the Veteran's service-connected disabilities on his functional abilities and his educational and occupational experience reflects that the preponderance of the evidence is in favor of a conclusion that he was unable to secure and follow substantially gainful employment as a result of his service-connected disabilities during the entire period from March 7, 2016 through January 17, 2019. Hence, entitlement to a TDIU during this period is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102 (2019). KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Adams Hill, 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.