Citation Nr: 21010075 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 14-29 301 DATE: February 24, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) on an extraschedular basis effective from March 30, 2012, is granted. FINDING OF FACT The Veteran’s service-connected disabilities prevented her from maintaining gainful employment effective from March 30, 2012. CONCLUSION OF LAW The criteria for entitlement to a total disability based upon individual unemployability (TDIU) on an extraschedular basis, effective from March 30, 2012, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 3.340, 3.341, 4.15, 4.16, 4.19 REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 2008 to March 2012. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2012 rating decision rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington, and a January 2013 rating decision of the RO in Detroit, Michigan. In November 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. In February 2018, the case came before the Board. The Board granted an initial rating of 10 percent for a lumbosacral strain based on the Veteran’s painful motion. In addition, the Board remanded the Veteran’s claims for entitlement to increased ratings for a lumbosacral strain, cholecystectomy, and hypothyroidism in order to obtain additional examinations. In December 2019, the RO issued a rating decision that increased the Veteran’s lumbosacral strain to 20 percent disabling effective from October 7, 2014. In April 2020, the case returned to the Board. The Board denied entitlement to an initial rating in excess of 10 percent for a lumbar strain prior to October 7, 2014. The Board also denied entitlement to an initial rating in excess of 20 percent for lumbar strain since October 7, 2014. Moreover, the Board denied entitlement to a compensable rating for cholecystectomy and entitlement to an initial rating in excess of 10 percent for hypothyroidism. Lastly, the Board found that the issue of TDIU was raised by the record and was part and parcel to the Veteran’s increased rating claims. Accordingly, in April 2020, the Board remanded this issue in order for the RO to refer the Veteran’s case to VA’s Director of Compensation Service for extraschedular consideration. In October 2020, the case returned to the Board. The Board remanded this issue in order for the RO to refer the Veteran’s claim to VA’s Director of Compensation Service because the RO did not forward the Veteran’s claim for extraschedular consideration following the April 2020 remand. Finally, the Board notes that following the return of this matter to the Board, the case has not been forwarded to the Veteran’s representative for the preparation of an informal hearing presentation (IHP). However, in view of the Board’s complete grant of the benefits sought in this matter, the Board finds that such referral is unnecessary and would simply result in the delay of the Veteran’s receipt of these benefits. 1. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to May 28, 2014 The Veteran contends that she is unable to work due to her service-connected disabilities. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate, “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340 (a)(1), 4.15. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is nonetheless unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b). “Substantially gainful employment” is that employment, “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore (Robert) v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. 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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The noneconomic factors include the Veteran’s: work history, education, skill, and training; the Veteran’s physical ability to perform work activities; and the Veteran’s mental ability to perform work activities required by the Veteran’s occupation. In determining whether unemployability exists, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to their age or to any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but, as is the case with the Veteran, fail to meet the percentage standards set forth in 38 C.F.R. §§ 4.16(a). Extraschedular ratings are intended to serve a “gap-filling” function when the Veteran’s overall disability picture establishes something less than total unemployability, but where the collective impact of the Veteran’s disabilities are nonetheless inadequately represented. 38 C.F.R. § 3.321(b)(1). Unlike the criteria for an extra-schedular rating under 38 C.F.R. § 3.321, the grant of an extra-schedular rating for TDIU under 38 C.F.R. § 4.16(b) is based on a subjective standard that seeks to determine if a particular veteran is precluded from employment based on his service-connected disabilities. See VAOPGCPREC 6-96 (1996). This means that the Board should take into account a veteran’s specific circumstances including her disability, education, and employment history when determining if she is unable to work. For a Veteran to prevail on a claim for a total compensation rating based on individual unemployability on an extraschedular basis, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In evaluating the evidence in any given appeal, it is the responsibility of the Board to weigh the evidence and decide where to give credit and where to withhold the same and, in so doing, accept certain medical opinions over others. Schoolman v. West, 12 Vet. App. 307, 310-11 (1999). In this regard, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Charles v. Principi, 16 Vet. App. 370 (2002); Klekar v. West, 12 Vet. App. 503, 507 (1999); Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). The Veteran was granted entitlement to individual unemployability when she met the schedular criteria effective from May 28, 2014. This portion of the appeal was raised by the record as part and parcel of the Veteran’s increased rating claims. In October 2014 VA received the Veteran’s VA Form 21-8940. She claimed that her right hip disability, anxiety, and fibromyalgia caused her unemployability. The Veteran stated that she last worked on March 29, 2012. The form also shows that Veteran reported that she worked in sales from May 2012 until July 2012 and earned 150.00 dollars a month. The Veteran stated that she left her last job due to her disabilities. The Veteran also stated that she has a four-year college degree. As an initial matter, the Board finds that the period from May 2012 until July 2012 only represents marginal employment. The Board further finds that the Veteran has not engaged in gainful employment since she separated from the military on March 29, 2012. Prior to May 28, 2014, the Veteran was service connected for 10 percent for fibromyalgia effective from March 30, 2012, 0 percent for headaches effective from April 16, 2013, 10 percent for a lumbosacral strain effective from March 30, 2012, 10 percent for a right hip strain effective from March 30, 2012, 10 percent for hypothyroidism effective from March 30, 2012, 0 percent for allergic rhinitis effective from March 30, 2012, 0 percent for gall bladder removal effective from March 30, 2012, 0 percent for surgical scar related to gall bladder removal effective from March 30, 2012, and 0 percent for nontoxic multinodular goiter effective from March 30, 2012. The Veteran’s combined rating prior to May 28, 2014 was 30 percent. As such, the Veteran does not satisfy the schedular criteria for a TDIU under 38 C.F.R. § 4.16 (a) prior to May 28, 2014. Therefore, the Board submitted this case to the Director for consideration of entitlement to a TDIU on an extraschedular basis. In a December 2020 decision, the Director determined the evidence did not show the Veteran was unable to secure and hold a substantially gainful occupation due to her service-connected disabilities. As to the Veteran’s lay statements, the Board notes that the Veteran testified that she experiences fatigue and pain in her hip and back. The Veteran also testified that she is not able to sit or stand for long periods of time, she has difficulty walking, and that it hurts to bend. The Board has also reviewed the Veteran’s Social Security Disability records. The Board notes that she reported that she can’t work due to fibromyalgia, anemia, hip pain, arthritis, back pain, hypothyroidism, and daily chronic headaches. The Board further notes that the Veteran reported that she is limited by her pain level. The Veteran also stated that she has to go to physical therapy and doctor’s appointments during the week. The Veteran reported that she can’t stand, sit, or be in places for too long. Lastly, the Veteran stated that she can’t lift anything over 10 pounds. Turning to the medical evidence at hand, the Board notes that the Veteran attended a VA examination for her service-connected disabilities in November 2012. The Veteran reported pain and fatigue; however, the examiner found that none of her disabilities impacted her ability to work. The examiner, however, did not consider the Veteran’s specific occupational history in sales and whether in view of that history, her service-connected disabilities precluded gainful employment at that time. In sum, the Board finds that the award of TDIU on an extraschedular basis prior to May 28, 2014, is warranted. After a review of the record and resolving all doubt in favor of the Veteran, the Board finds that the evidence supports the assignment of TDIU for the entire appeal period. Although the Veteran did not meet the schedular criteria prior to May 28, 2014, the Board finds that the pain, fatigue, and lost range of motion as a result of her service-connected disabilities rendered her unable to maintain any form of substantially gainful employment consistent with her occupational and educational background since March 30, 2012. Thus, a TDIU effective from March 30, 2012, is warranted. Michael J. Skaltsounis Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Rescan, 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.