Citation Nr: 21010549 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-18 627 DATE: February 25, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) on an extraschedular basis is granted. FINDING OF FACT The evidence is at least in equipoise as to whether the Veteran’s service-connected lumbar spine disability, right knee arthritis, and right lower extremity sensory impairment render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for TDIU on an extraschedular basis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the U.S. Army from January 1979 to January 1982 and from February 1991 to March 1991. In June 2018, the Veteran testified at a hearing before a Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. In a December 2020 letter, the Veteran was notified that the VLJ who conducted the hearing was no longer employed at the Board. Pursuant to 38 U.S.C. § 7107(c), the appellant was offered an opportunity to testify at a hearing before a different VLJ, and was instructed that he had 30 days from the date of the letter to respond. As the Veteran has not responded to the December 2020 letter and has not otherwise indicated a desire to appear at a new hearing before a different VLJ, the Board will proceed with adjudication of the Veteran’s claim. The Board has considered the Veteran’s claim and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to a TDIU on an extraschedular basis A total disability rating may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 4.16, 4.19. The fact that a veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether the veteran, because of service-connected disabilities, is incapable 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, 363 (1993). In this case, the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a) during the appeal period. He is service connected for degenerative arthritis of the lumbar spine, rated as 20 percent disabling; right knee arthritis, rated as 10 percent disabling, and right lower extremity sensory impairment, rated as 10 percent disabling. His combined disability rating throughout the entire appeal period is 40 percent. Even when the criteria under 38 C.F.R. § 4.16(a) are not met, entitlement to individual unemployability benefits on an extraschedular basis may be considered 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 Board does not have the authority to assign an extraschedular TDIU in the first instance without initially referring the claim to VA’s Director of Compensation Service. Bowling v. Principi, 15 Vet. App. 1 (2001). In compliance with the Board’s October 2019 remand, the Agency of Original Jurisdiction submitted the Veteran’s claim to the Director of Compensation Service; however, the Director concluded that the Veteran was not entitled to TDIU on an extraschedular basis. As the Director has considered the issue in the first instance, the Board may now evaluate the claim. Wages v. McDonald, 27 Vet. App. 233 (2015). Throughout the appeal period, the record reflects that the Veteran has been unemployed. In an August 2013 formal claim for TDIU, the Veteran reported that he last worked full-time in 1994, as a food service supervisor. He noted that he held a part-time job as a deli associate, working 16 hours per week, until April 2008. He noted that he left his last job because of his service-connected disabilities. He reported that he has completed three years of high school and had no additional education or training. In a January 2011 statement, the Veteran reported that he had not been able to work for 10 years due to significant leg pain that prevented prolonged walking and standing. He also noted difficulty relating to others and being in large groups. The record reflects that the Veteran is in receipt of disability benefits from the Social Security Administration (SSA) based primarily upon his low back disability, but also upon his nonservice-connected diabetes mellitus. SSA disability benefits were awarded in April 2002, and reflect that the Veteran’s disability began in May 2000. During a July 2010 VA spine examination, the Veteran reported that he experienced constant back pain which prevented working and doing chores. He also noted that he had been unemployed for years due to back and knee pian. The VA examiner diagnosed degenerative arthritis of the lumbar spine which affected employment in that it caused increased absenteeism. Additionally, the examiner noted that the spine disability resulted in decreased mobility, problems with lifting and carrying, weakness or fatigue, decreased strength in a lower extremity, and pain. The examiner also indicated that the Veteran experienced difficulty with activities of daily living, and that most of his limitations were due to his lumbar spine. A July 2010 VA knee examination reported that the service-connected right knee disorder had significant effects on the Veteran’s usual occupation, and resulted in decreased mobility, problems with lifting and carrying, lack of stamina, weakness or fatigue, decreased strength, and pain. In January 2011, a VA Vocational Rehabilitation Counselor opined that the Veteran’s service-connected disabilities impaired his “ability to prepare for, obtain, or retain employment consistent with his interest, aptitude, and abilities . . . .” The counselor explained that the Veteran had been unemployed since 2000, had not overcome his vocational impairment, and that any employment at that time “would be considered not suitable, as it is aggravating the veteran’s disabilities. Unemployment is outside of the Veteran’s control.” The counselor noted that, because of the Veteran’s service-connected disabilities, he experienced difficulties with long periods of standing, walking, and/or sitting, heavy lifting and carrying, and bending, stooping, crawling, and kneeling. Nonservice-connected disabilities were noted to contribute to the Veteran’s difficulties with long periods of standing, walking, sitting, bending, stooping, squatting, crawling, and kneeling. The counselor explained that the impairment found was determined to result, in substantial part, from the Veteran’s service-connected disabilities. Ultimately, the counselor concluded that the Veteran had a serious employment handicap, and that the achievement of a vocational goal was not feasible. In June 2011, the VA Vocational Rehabilitation Counselor determined that it was “medically infeasible” for the Veteran to complete vocational rehabilitation “because of the severity of his back condition, leg condition, diabetes, and PTSD” which “prevent suitable employment.” Based on the foregoing, the Board concludes that the Veteran’s service-connected disabilities render him unable to obtain or maintain substantially gainful employment. The physical impairments, including decreased mobility, problems with lifting and carrying, weakness or fatigue, decreased strength in a lower extremity, and pain would limit his ability to perform most physical work, and the Veteran’s only significant work history is as a cook, which requires him to reach, bend, walk, and stand for long periods of time. Although the Director of Compensation and Pension concluded that the Veteran’s service-connected disabilities would not prevent gainful employment, the Veteran’s SSA records and the January 2011 assessment from the VA Vocational Rehabilitation Counselor show that the Veteran’s service-connected disabilities render him unemployable and preclude vocational rehabilitation. While the evidence suggests that Veteran’s nonservice-connected disabilities contribute, in some part, to his unemployability, the weight of the medical evidence shows that the most significant impairments are caused by the Veteran’s service-connected lumbar spine disability. Resolving reasonable doubt in the Veteran’s favor, entitlement to TDIU on an extraschedular basis is warranted. 38 C.F.R. §§ 3.102, 4.3, 4.16(b). ANTHONY C. SCIRÉ, JR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Katz, 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.