Citation Nr: 21009448 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 15-43 059 DATE: February 22, 2021 ORDER Entitlement to a total disability rating due to individual unemployability (TDIU) on an extraschedular basis is granted, subject to the laws and regulations governing the payment of monetary awards. FINDING OF FACT The aggregate effect of the Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation that is consistent with his education and occupational experience. CONCLUSION OF LAW The criteria of a TDIU on an extraschedular basis have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19, 4.25 (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Navy from May 1959 to August 1962. 1. Entitlement to a TDIU on an extraschedular basis In its November 2020 remand, the Board found the issue of entitlement to an extraschedular TDIU warranted consideration by the Director of Compensation and Pension Service. The Veteran is service-connected for facial scars rated as 30 percent disabling, loss of maxillary bone rated as 30 percent disabling, left inferior nasal canthus scarring rated as 10 percent disabling, tinnitus rated as 10 percent disabling, a seizure disorder rated as 10 percent disabling, and a back condition rated as 10 percent disabling. The Veteran’s combined disability rating is 60 percent prior to January 21, 2014 and 70 percent thereafter. 38 C.F.R. § 4.25. While the Veteran has a combined 70 percent rating beginning January 2014, none of the Veteran’s disabilities are individually ratable as 40 percent or more as required by the regulations. Therefore, the schedular percentage criteria for a TDIU have been not met. 38 C.F.R. § 4.16(a). Even when the percentage requirements of 38 C.F.R. § 4.16(a) are not met, a TDIU may be granted on an extraschedular basis in exceptional cases when the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. §§ 3.321(b), 4.16(b). In Bowling v. Principi, 15 Vet. App. 1, 10 (2001), however, the United States Court of Appeals for Veterans Claims (Court), citing its decision in Floyd v. Brown, 9 Vet. App. 88, 94-97 (1995), held that the Board cannot award a TDIU under 38 C.F.R. § 4.16(b) in the first instance because that regulation requires that the Regional Office (RO) first submit the claim to the Director of the Compensation and Pension Service for extraschedular consideration. Here, the Director has issued an opinion as to the entitlement of an extraschedular disability rating. and as such, the Board finds that it has jurisdiction to award an extraschedular TDIU under 38 C.F.R. § 4.16(b) at this time. See January 2021 VA Memorandum. The question for the Board, then, is whether the Veteran is able to secure or follow a substantially gainful occupation as a result of the aggregate effects of his service-connected disabilities. The Board finds that the preponderance of the evidence of record as to whether the Veteran’s service-connected disabilities have rendered him unable to secure or follow a substantially gainful occupation supports an award of a TDIU on an extraschedular basis. Turning to the merits, the evidence shows that the Veteran last worked in 2010 and that he does not receive income from employment exceeding the federal poverty threshold. This is in accordance with the economic component of entitlement to an extraschedular TDIU. Regarding the noneconomic component, the Veteran reported that he has a high school education and that he worked as a self-employed tree faller and laborer from 1980 to 2010. The Veteran stated that he is unable to work in his past employment due to the limitations of his service connected back and osteopenia as well as his non-service connected hips and neck. See November 2019 Application for Increased Compensation based on Unemployability. However, the Board may only consider the impact of his service-connected disabilities when determining entitlement to a TDIU. In July 2020, a VA examiner stated that the Veteran’s back directly limited the Veteran’s ability to stand or walk for any period for longer than ten minutes at a time. The examiner further stated that his back directly limits the Veteran’s ability to perform his occupation of a tree cutter. The examiner found the Veteran would not be significantly limited to perform sedentary work, but he would be limited in his inability to move and necessity to go from sitting to standing frequently. Here, the evidence shows that that Veteran’s service-connected disabilities alone precluded him from securing or following a substantially gainful occupation. Although the Veteran stopped working due to service-connected and nonservice connected disabilities, the evidence shows that the Veteran’s back and osteopenia significantly contributed to the Veteran’s decision to stop working in 2010. While the July 2020 that the Veteran might be able to work at a sedentary occupation, this speculative statement does not weigh against entitlement to a TDIU. Moreover, the Veteran’s work experience is not readily applicable to a sedentary occupation based on the ordinary meaning of the term. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). Critically, there are no opinions of record indicating that the Veteran would be able to perform his highly physically demanding past work. In any event, the ultimate determination as to entitlement to a TDIU is made by VA adjudicators, rather than medical examiners. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Here, the probative evidence of record weighs in favor of the claim, and thus an extraschedular TDIU is warranted. A. S. CARACCIOLO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Laura C. Owens 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.