Citation Nr: 21010297 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-17 816 DATE: February 24, 2021 ORDER Aa total disability rating based on individual unemployability (TDIU) is granted, effective July 2, 2009. FINDING OF FACT Resolving all reasonable doubt in favor of the Veteran, as of July 2, 2009, the Veteran’s service-connected disabilities rendered him unable to secure and follow substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to December 2, 2013 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1975 to April 1978, and from January 1982 to June 1992. The Veteran’s claim was previously before the Board in March 2019. At that time, the Board determined that while the Veteran did not meet the schedular criteria for a TDIU prior to December 2, 2013, a referral to the Director of Compensation and Pension (Director) was warranted in order to determine eligibility for extraschedular TDIU prior to December 2, 2013. In an August 2020 decision, the Director denied the Veteran’s extraschedular claim. The case is now returned to the Board for appellate review. 1. Entitlement to a TDIU prior to December 2, 2013 By way of history, the Veteran filed a claim for a TDIU on July 2, 2009. In a June 2010 rating decision, the RO denied entitlement to a TDIU, and the Veteran appealed. The Veteran was awarded a TDIU in a January 2014 Rating Decision, effective December 2, 2013, the date that the Veteran met the schedular criteria fora TDIU. The Veteran filed a Notice of Disagreement regarding the effective date of the TDIU grant in February 2014. A TDIU may be assigned, if the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). In exceptional circumstances, where the Veteran does not meet the percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment due to service-connected disability. 38 C.F.R. § 4.16(b). Prior to December 2, 2013, the Veteran’s combined rating was 60 percent. The Veteran was service-connected for the following disabilities at 10% disabling for degenerative joint disease of the left shoulder, 10% disabling for degenerative joint disease of the right shoulder, 10% disabling for bilateral tinnitus, 10% disabling for degenerative joint disease of the right knee, 10% disabling for degenerative joint disease of the left knee, 10% disabling for right ankle strain, 10% disabling for vertigo, and 10% disabling for bilateral hearing loss. During the period on appeal prior to December 2, 2013, the Veteran did not meet the schedular percentage requirements under38 C.F.R. § 4.16(a). An extraschedular total rating based on individual unemployability may be assigned in the case of a veteran who fails to meet the percentage requirements but who is unemployable by reason of service-connected disability. 38 C.F.R. § 4.16(b). If a Veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service, for extra-schedular consideration, all cases where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16(b); Bowling v. Principi, 15 Vet. App. (2001); Fanning v. Brown, 4 Vet. App. 225 (1993). Although the Board may not award a TDIU on an extraschedular basis without the Director’s decision, the Board is not bound by an adverse determination by the Director of Compensation Service regarding extraschedular entitlement to a TDIU. See Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (finding that the Director’s decision denying or awarding an extraschedular rating is in essence the de facto decision of the agency of original jurisdiction and, as such, is no different than an RO’s decision in terms of its effect on the Board’s statutory jurisdiction and the Board’s standard of review). The question remains, then, whether the Veteran was precluded from obtaining and maintaining a substantially gainful occupation as a result of his service-connected disabilities prior to December 2, 2013. In this regard, the Board has considered the Veteran’s educational and employment background. The Veteran’s records indicate that he has a high school education and has completed 4 semesters of college. See October 2009 Medical Treatment Record. The Veteran has reported that his last employment was in 2006, delivering groceries to Walmart stores. Id. He reported that he left this employment position because of an inability to keep up with production demands. Id. In January 2010, the Veteran also reported his prior employment at Lee’s Sunshine Enterprises (Lee’s). See Request for Employment Information in Connection with Claim for Disability Benefits. The Veteran indicated that while employed at Lee’s, he worked as a routeman, driving to different locations and performing work on machines. Id. He reported that he ceased working at Lee’s in 2004 because there was too much work to do by himself, in addition to new ownership. Id. The Veteran also reported employment at Keebler Sales Company from 2004 to 2006. Id. He similarly provided services as a routeman. Id. Ultimately, this employment ceased due to a lost contract and the Veteran’s inability to get into and out of the truck to unload. Id. The Veteran’s work history as a whole reflects experience as a truck driver and a distributer. In September 2009, a VA examiner found the Veteran’s service-connected rheumatoid arthritis had moderate effects on the Veteran’s ability to perform chores and driving, among other functional impairments. See September 2009 VA Examination. In May 2010, a VA memorandum counseling narrative from a vocational rehabilitation counselor found that the Veteran had an impairment to employability. The counselor specified that the Veteran had vocational impairments as follows: grip strength, walking, prolonged sitting, lifting, carrying, squatting, working overhead, lower energy levels from lack of good night’s sleep (due to joint pain), high and low frequency hearing loss, and difficulty hearing when background noises present. The counselor also listed non-service-connected disabilities. The counselor determined that the Veteran had not overcome the effects of the impairments of employability because he lacked transferable vocational skills that would be compatible with his disability limitations. At the time of the memorandum, the Veteran was unemployed, had no college degree, and had experience as a machinist (service) as well as a driver, and in stocking grocery shelves. Ultimately, the vocational counselor found that the Veteran was no longer able to work in the fields that he was previously in due primarily to his service-connected disabilities. The counselor also found that the Veteran suffered from a serious employment handicap; the Veteran suffered from a significant impairment in terms of the ability to prepare for, obtain, or retain employment consistent with the Veteran’s interests, aptitudes, and abilities. The counselor continued, finding that the Veteran’s pain due to his service-connected disabilities would make training for, obtaining, or retaining employment unlikely. In conclusion, the vocational counselor determined that the Veteran was infeasible for employment based on his service-connected disabilities, as well as his non-service-connected disabilities. In June 2010, the Veteran underwent an independent living assessment evaluation conducted by a VA contracted vocational and employment consultant. The Veteran reported difficulty with functional limitations as follows: walking long distances, sitting for prolonged periods of time, standing, kneeling, climbing, lifting, pulling or pushing, crawling, crouching, stooping, carrying, and rising from a seated position. The Veteran also reported difficulty getting into and out of the shower, as well as difficulty rising from the seated position when toileting. He also reported that getting out of bed causes him pain, difficulty putting on socks and shoes, and difficulty hearing on the telephone, requiring him to use the speaker function on his home phone. In addition, cold weather reportedly aggravated the Veteran’s orthopedic conditions. In March 2011, the Veteran stated that his service-connected disabilities prevented his employment since July 2006, and that he had difficulty in mobility, stiffness, balance, and pain. See March 2011 Statement in Support of Claim. He further reported that in addition to physical difficulties due to his service-connected arthritis, he also suffered from functional impairment due to his hearing loss and tinnitus. Id. Namely, the Veteran indicated that his hearing problems and tinnitus induced a loss of focus and concentration, and caused problems with sleep and depression. Id. In August 2011, the Veteran was awarded Social Security Disability, effective July 13, 2009. See August 2011 SSA Letter. In the findings of fact portion of the decision, an Administrative Law Judge (ALJ) noted that the Veteran was unable to perform even non-physical work in that the Veteran was unable to perform basic work activities on a regular and continuing basis at even a sedentary exertional level in a competitive environment; a regular and continuing basis meaning 8 hours a day, 5 days a week, or an equivalent work schedule. Id. The ALJ explained that the Veteran’s medical records confirmed a history of treatment for numerous impairments, including arthritis, vertigo, and hearing loss, which limited his level of functioning; the Veteran’s vocational limitations were numerous and were noted to result in reduced work performance in many work environments. Id. The ALJ cited to the Veteran’s October 2009 hearing evaluation, determining that the Veteran would experience significant difficulties with hearing and understanding speech in all listening conditions, with or without the use of hearing aids. Id. The ALJ continued, finding that the evidence showed that the Veteran had a long history of arthritis pain and hearing loss, which significantly impacted his level of functioning, requiring a need to rest during the day. Id. Based on the record as a whole, the ALJ found that the combined effects of the Veteran’s impairments, with resulting pain and limitations, reduced his ability to engage in work-related activities to the point that he did not possess the residual functional capacity to engage in any type of substantial gainful activity at any level of exertion. Id. Given the restrictions on his employability, and resolving any doubt in favor of the Veteran, the Board finds that the effects of the manifestations of his service-connected disabilities prior to December 2, 2013 were sufficiently incapacitating as to result in unemployability in light of the severity of his symptoms, occupational history, education, and experience. While the Board acknowledges the Director’s memorandum indicating that the Veteran’s disabilities do not limit his ability to perform non-physical work, such as a desk position, the Board respectfully disagrees. The record evidence indicates that the Veteran has experienced difficulty walking, sitting, lifting, carrying, balancing, and hearing loss as early as the date of his claim in July 2009. Throughout the years prior to December 2013, the Veteran reported difficulty rising from the seated position, and sitting for prolonged periods of time. The Veteran has also reported that he experienced trouble rising after being seated on the toilet and putting socks on. While the Veteran may have the cognitive ability to perform a desk job, albeit with no experience in such a field, it is apparent that he does not have the physical ability to maintain a prolonged seated position, or would have great difficulty if required to rise from a seated position at a desk job. In addition to these physical impairments to working a non-physical desk job, the Board also notes that the Veteran would feasibly have had difficulty succeeding at a desk job due to his hearing impairment. The Veteran reported trouble using the phone and having to use the speaker function at his home in order to speak on the telephone. An ALJ opined that in regard to employment, the Veteran would experience significant difficulties with hearing and understanding speech in all listening conditions, with or without the use of hearing aids. In a non-physical position, such as a desk job, if the Veteran were required to use a phone to perform his job, or speak with superiors and coworkers, it is likely that he would be impeded by his hearing deficit. In addition to this hearing loss-induced impairment, the Board also notes that the Veteran reported that his tinnitus caused difficulty with focus and concentration. In an office setting, this lack of focus and concentration would undoubtedly impact the Veteran’s ability to perform tasks. Of importance, in May 2010 and June 2010, two separate vocational experts determined that the Veteran suffered from functional impairment due to his service-connected disabilities and residual symptoms. Further, in August 2011, an ALJ in the position of awarding social security disabilities also determined that the Veteran’s service-connected disabilities impeded his ability to perform substantially gainful employment. In the instant case, it is not clear that the Veteran could perform physical or non-physical work prior to December 2, 2013 due to his service-connected disabilities. This is especially so when his employment history of primarily working as a truck driver and distributer is taken into consideration, as he has not had training or experience in working non-physical desk jobs. In sum, having carefully considered the Veteran’s contentions, his education and employment background, and all of the limitations imposed on him as a consequence of his service-connected disabilities, and resolving all doubt in the Veteran’s favor, the Board finds that the criteria for entitlement to a TDIU have been met as of the date of his claim, July 2, 2009. See 38 C.F.R. § 4.16(b). See also 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Vosburgh, 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.