Citation Nr: 21010479 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 07-06 286 DATE: February 24, 2021 ORDER A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) since January 28, 2010, is granted. FINDING OF FACT Service-connected disabilities prevented the Veteran from being gainfully employed beginning on January 28, 2010. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met, effective January 28, 2010. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.10, 4.16, 4.18, 4.19, 4.25 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1992 to April 2001. This claim stems from the Veteran’s increased rating claim submitted on April 7, 2006. In an April 2011 Board decision, the Board noted that the issue of TDIU had been raised per Rice v. Shinseki, 22 Vet. App. 447 (2009). In an October 2018 Board decision, the Board granted the Veteran’s claim for TDIU effective August 17, 2010. Total Disability Rating based on Individual Unemployability A total rating based on unemployability due to service-connected disabilities may be granted if the service-connected disabilities preclude the Veteran from obtaining or maintaining substantially gainful employment consistent with his or her education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. If there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16 (a). For those Veterans who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), total disability ratings for compensation may nevertheless be assigned when it is found that the service-connected disabilities are sufficient to produce unemployability; such cases should be referred to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16 (b). Provision 38 C.F.R. § 4.16 (a) establishes that 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 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. In reaching a determination of a TDIU, it is necessary that the record reflect some factor which takes the Veteran’s case outside the norm with respect to a similar level of disability under the rating schedule. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); 38 C.F.R. §§ 4.1, 4.15 (2016). The fact that a claimant is unemployed or has difficulty obtaining employment is not enough. The question is whether or not 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, and 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 (includes 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. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16 (a). 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 a veteran’s level of education, special training, and previous work experience, but advancing age and the impairment caused by nonservice-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose, 4 Vet. App. at 363. Entitlement to TDIU from April 7, 2006, to August 16, 2010, to include on an extraschedular basis Between April 7, 2006, and August 16, 2010, service-connected disability compensation was in effect for bilateral pes planus at 10 percent disabling; lumbar degenerative disc disease at 20 percent disabling; thoracic spondylosis at 10 percent disabling; cervical degenerative disc disease at 10 percent disabling; and noncompensable evaluations for bilateral hallux valgus disabilities. The combined rating for these disabilities during the period on appeal was 40 percent. The initial threshold requirements for entitlement to TDIU are thus not met. Because the ratings provided under the Schedule are averages, an assigned rating may be adequate to address the average impairment in earning capacity caused by the disability, but not completely account for the Veteran’s individual circumstances. Thun v. Peake, 22 Vet. App. 111, 114 (2008). The determination of whether a claimant is entitled to an extraschedular rating under 38 C.F.R. § 4.16 (b) is a three-step inquiry. First, as a threshold factor, there must be a finding that the evidence of record presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Id. In this regard, the Board must compare the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the Schedule for that disability. See Id. If the rating criteria reasonably describe the claimant’s disability level and symptomatology, then the claimant’s disability picture is contemplated by the Schedule, in which case the assigned schedular evaluation is adequate and no referral is required. Id. Second, if the schedular criteria are found to be inadequate to evaluate the claimant’s disability, the Board must determine whether the exceptional disability exhibits other related factors such as marked interference with employment or frequent periods of hospitalization. Id. If so, then under the third step of the inquiry the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant’s disability picture requires the assignment of an extraschedular rating. Id. At the April 2006 VA medical examination, the Veteran reported daily radiating pain into both lower extremities, difficulty bending or lifting more than 10 pounds, an inability to participate in sports, walk more than 2 minutes, stand more than 5 minutes, or sit more than 20 minutes. She reported she was a clerical worker and that her service-connected disabilities did not result in any job restrictions. She also endorsed flareups 5 out of 7 days without any additional functional impact. At the June 2007 VA medical examination, she reported continued back and neck pain since her last examination, that she had daily low back pain due to prolonged sitting, which was part of her job, but that she could perform all her work activities even with the frequent pain. She also reported pain in both feet after walking more than a quarter of a mile. At the May 2009 VA medical examination for spinal conditions, the Veteran reported that she worked full-time performing administrative-type work but that due to daily back and neck pain she could not sit for more than 10 to 15 minutes at a time, nor walk or stand for more than 5 minutes at a time. At the time of the examination she was 37-weeks pregnant. At the September 2009 VA medical examination for spinal conditions, the Veteran reported she was unable to participate in sports or lift more than 5 pounds, that she had daily intermittent pain, and that she experienced radiating pain down her bilateral legs. She also reported no relief from taking over-the-counter pain medication. In a January 2010 statement, the Veteran reported she had exhausted her paid leave compensation quota, and that she would not receive compensation for any additional days missed from work due to medical appointments or the painful effects of her service-connected disabilities. The Veteran resigned from her position in late January 2010 and has not worked since that time. In an October 2018 remand, the Board referred the claim to the Director of Compensation for an opinion. In an April 2020 memorandum, the RO noted that the evidence reflected that the Veteran’s service-connected disabilities resulted in marked interference with employment. The RO recommended that TDIU be granted from January 28, 2010, the day after the Veteran’s last date of full-time employment. In a May 2020 opinion, the Director of Compensation opined that given the Veteran’s education, training, and work history, the evidence failed to support the contention that the Veteran’s service-connected disabilities prevented gainful employment prior to August 17, 2010, the date the Veteran met the schedular criteria for TDIU. The Board grants TDIU effective January 28, 2010. The evidence indicates the Veteran was gainfully employed between April 7, 2006, and January 27, 2010. At the November 2020 Board hearing, the Veteran testified that she worked in the financial department of a prison in an administrative capacity but that she also had to perform traditional correctional officers work, such as accompany or transport inmates. She explained that due to her service-connected back and neck disabilities in particular she missed many days of work and that once she had used all her paid leave compensation she would often stay home from work even though she did not receive pay. She testified that she could not remember exactly how many days a year she had to take unpaid leave since 2006. After the Board hearing, the Veteran attempted to obtain more detailed information to show the number of days she took unpaid leave due to the painful effects of her service-connected disabilities since 2006. Although the Veteran was unable to provide the Board with this level of detail, the Veteran’s statements throughout the appeal period indicates she remained gainfully employed as a full-time employee between April 2006 and her resignation in January 2010. Since the Veteran was gainfully employed between April 7, 2006, until January 27, 2010, the Veteran warrants an extraschedular TDIU starting the day after her last day of work. TDIU is granted effective January 28, 2010. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Anwar, Attorney-Advisor 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.