Citation Nr: 21009786 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 06-05 127 DATE: February 23, 2021 ORDER Entitlement to a total rating based on individual unemployability (TDIU) on an extraschedular basis from August 1, 2007 to May 25, 2009 is denied. FINDING OF FACT From August 1, 2007 to May 25, 2009, the Veteran did not meet the schedular criteria for TDIU, and his service-connected disabilities did not render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW The criteria for a TDIU on an extraschedular basis from August 1, 2007 to May 25, 2009 have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1967 to January 1969. The Veteran testified at a Decision Review Officer (DRO) hearing in April 2012. A transcript of that hearing is associated with the record. The Board remanded the case for further development in November 2010, April 2015, April 2016, and July 2017. In May 2018, the Board denied the Veteran’s claim for TDIU after he did not attend a scheduled VA examination. Thereafter, the Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). Pursuant to a November 2018 Joint Motion for Partial Remand (JMR), the Court vacated the May 2018 denial pertaining to entitlement to TDIU and remanded the claim to the Board. After the case returned to the Board, in May 2019, the Board denied the Veteran’s claim for TDIU on the merits. The Veteran appealed the May 2019 Board decision to the Court. The parties moved to vacate and remand the Board decision in a December 2019 JMR. In a July 2020 decision, the Board granted entitlement to TDIU effective May 26, 2009 and denied entitlement to TDIU prior to August 1, 2007. The issue of entitlement to TDIU for the period between August 1, 2007 and May 25, 2009 was remanded and has been returned to the Board for appellate consideration. Entitlement to a total rating based on individual unemployability (TDIU) on an extraschedular basis from August 1, 2007 to May 25, 2009. TDIU may be granted when a claimant's service-connected disabilities are rated less than total but prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16. If a claimant has only one disability, that disability must be ratable at 60 percent or more. If he has two or more disabilities, there shall be at least one rated 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For the purpose of establishing 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 the 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. However, even when the percentage requirements are not met, entitlement to a total rating, on an extraschedular basis, may nonetheless be granted, in exceptional cases, 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). 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 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. The ultimate question, however, is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). As noted, the July 2020 Board decision granted TDIU effective May 26, 2009 and denied TDIU prior to August 1, 2007. The period between August 1, 2007 and May 25, 2009 was remanded and remains on appeal. During the relevant period on appeal, the Veteran was in receipt of a 10 percent rating for left ankle degenerative tibial talar joint calcaneus, enthesopathy prior to October 6, 2008, and a 20 percent rating thereafter; a 10 percent rating for laceration of left heel, healed with dysesthesias and loss of sensation in sural nerve distribution, left sided sciatica effective from October 6, 2008; a 10 percent rating for simple, old, well-healed fracture, left clavicle and secondary traumatic arthritis; a 10 percent rating for scar to left heel, painful and tender; a 10 percent rating for right knee patellar tendonitis, chondromalacia and chronic musculoligamentous strain and mild degenerative joint disease on prior x-rays effective from August 22, 2005; two 10 percent ratings for tinnitus and hypertension effective from August 22, 2005; and a noncompensable rating for healed fracture of the 1st metacarpal right thumb. His combined disability rating was 50 percent from August 22, 2005 to October 5, 2008; and 60 percent from October 6, 2008 to May 25, 2009. As such, he did not meet the schedular criteria for TDIU at any time during this period and entitlement for a TDIU must be considered under the criteria set forth in 38 C.F.R. § 4.16(b). Therefore, pursuant to the July 2020 Board remand and 38 C.F.R. § 4.16(b), the issue was referred to the Director of the Compensation Service (Director) for extraschedular consideration. The Director determined in a December 2020 Advisory Opinion that TDIU on an extraschedular basis was not warranted during the period on appeal. As the Director, under the regulation, has in the first instance adjudicated entitlement to TDIU on an extraschedular basis, the Board will now consider the issue by reviewing that decision and make an independent determination on the matter. See Anderson v. Shinseki, 22 Vet. App. 423, 427-28 (2008). A September 2009 VA Form 21-4192 indicates that the Veteran worked as a Veterans Home Administrator from June 1972 to July 31, 2007. The Veteran's employer indicated that the Veteran worked fulltime, stating that he worked 8 hours a day, 40 hours a week. The Veteran reported in his May 2009 VA Form 21-8940 that he had worked for 35 years as an administrator for the state government and his maximum earnings were approximately $105,000 yearly. His highest level of education was reported as completion of four years of college. He clarified at the RO hearing in May 2012 that although he began taking classes towards a Bachelors’ degree, he did not finish and instead earned a two-year Associates’ degree which was all that was needed at the time for him to work in nursing home administration. In August 2015, the Veteran wrote that he had not worked full time since 2007 and had not worked any job since December 2012. An August 2012 submission in the claims file from his employer at a liquor store reported that the Veteran began employment there in January 2008 and originally worked 50 to 60 hours each pay period and began working only 25 to 30 hours every pay period beginning in February 2012. An August 2008 VA examination noted that the Veteran’s service-connected left ankle and right knee conditions caused occupational effects including decreased mobility, lack of stamina and pain that caused him to be assigned different duties. He did not indicate any other significant effects on his ability to work. In an April 2009 VA examination, the examiner indicated occupational effects due to the Veteran’s heel, knee, and ankle conditions including decreased mobility, lack of stamina, pain, and fatigue that caused him to be assigned different duties at work and miss approximately two weeks of work during the past year. During an October 2009 VA examination, the Veteran reported that he retired in July 2007 due to eligibility due to age/duration of work. The examiner did not discuss any occupational impairment due to his service-connected disabilities. A January 2011 VA examiner addressed unemployability regarding the Veteran’s various physical disabilities. The Veteran was not service connected for a back disability during the period currently on appeal, and thus any occupational impairment due to symptomatology relating to the back is not relevant. However, the Board notes that the examiner reported that the “Veteran also states his retirement was partially due to pain in his back and he stood too long giving a speech and pain in his knees for long standing. These conditions had been present for many years and did not . . . interfere with Veteran’s ability to perform sedentary activities required as an administrator.” The examiner also noted that “it is not likely the Veteran’s current service-connected conditions would interfere with any desired sedentary work. It is unlikely the Veteran couldn’t perform any physical labor without aggravating his service-connected knees and low back condition.” Based on the evidence of record relevant to the time period on appeal, the Board finds that while the Veteran certainly had some occupational impairment as a result of his service-connected disabilities between August 1, 2007 and May 26, 2009, as evidenced by his disability evaluations, the evidence does not establish that his service-connected disabilities precluded gainful employment at any time during the period on appeal. In reaching this decision, the Board has considered the Veteran's education, training, and work history as reflected in the record, as well as the lay and medical evidence of the effects of his service-connected disabilities, as outlined above, and finds that his specific history and disability picture supports a finding that he could perform some forms of gainful employment between August 1, 2007 and May 26, 2009. See Withers v. Wilkie, 30 Vet. App. 139 (2018); Geib v. Shinseki, 733 F.3d 1350 (2013). The Board emphasizes that "[t]he percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and their residual conditions in civil occupations." 38 C.F.R. § 4.1; see also Van Hoose, 4 Vet. App. at 363 (noting that the disability rating itself is recognition that industrial capabilities are impaired; the record must reflect some factor which takes the case outside the norm.) In sum, the Board finds that the evidence of record does not show that the Veteran was precluded from securing or following substantially gainful employment as a result of his service-connected disabilities in order to warrant TDIU on an extraschedular basis from the period between August 1, 2007 and May 26, 2009. The Board has considered the benefit-of-the-doubt doctrine; however, the Board does not perceive an approximate balance of positive and negative evidence. As the preponderance of the evidence is against the claims, the doctrine is not applicable and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Sneeringer, 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.