Citation Nr: 21011212 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 17-36 049 DATE: March 1, 2021 ORDER For the period between August 9, 2008, and December 18, 2012, a total disability rating based on individual unemployability (TDIU) is granted, on an extraschedular basis. FINDING OF FACT For the period between August 9, 2008, and December 18, 2012, the Veteran’s service-connected disabilities were as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. CONCLUSION OF LAW For the period between August 9, 2008, and December 18, 2012, the criteria for an extraschedular TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1985 to March 1986. These matters come before the Board of Veterans’ Appeals (Board) from an October 2016 rating decision. The Veteran testified at a Board videoconference hearing in December 2019. The Veteran’s representative was not present at the hearing. The Veteran, however, agreed to represent himself at the hearing. The issue of entitlement to a TDIU is under the Board’s jurisdiction as part and parcel of the appeal from the rating assigned for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In February 2020, the Board denied an effective date earlier than May 25, 2006, for the grant of service connection for degenerative joint disease of the lumbar spine, granted a higher initial rating of 20 percent, but not higher, for degenerative joint disease of the lumbar spine, and granted a TDIU for the period between December 18, 2012, and February 24, 2017. The Board also remanded the issue of entitlement to a TDIU prior to December 18, 2012, for extraschedular consideration. This issue is now back before the Board. *** As noted above, a TDIU is already in effect from December 18, 2012, forward. The question for the Board is whether a TDIU is warranted prior to that date. A total disability rating 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 due to service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). This is so, provided that the unemployability is the result of a single service-connected disability ratable at 60 percent or more, or the result of two or more service-connected disabilities, where 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. § 4.16(a). Prior to December 18, 2012, the Veteran does not meet the schedular percentage threshold for consideration of a TDIU per 38 C.F.R. § 4.16(a).   Nevertheless, it is VA’s established policy 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. Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As already mentioned, the Board, in November 2018, remanded the issue of entitlement to a TDIU prior to December 18, 2012, for extraschedular consideration. In July 2020, the Agency of Original Jurisdiction (AOJ) recommended that entitlement to an extraschedular TDIU be denied. 07/13/2020, VA Memo. In September 2020, the Compensation Service concurred with the AOJ’s recommendation to deny TDIU benefits. 09/30/2020, VA Memo. Although the Board may not in the first instance award a TDIU on an extraschedular basis, the Board is not bound by an adverse determination by the Director regarding extraschedular entitlement to a TDIU because the Court has determined that the Director’s decision is in essence a decision by the AOJ and is no different than a RO’s decision in terms of its effect on the Board’s jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233 (2015). Accordingly, the Board must determine whether the evidence supports a finding that the Veteran is entitled to TDIU under 38 C.F.R. § 4.16(b). Consequently, the Board must determine whether the Veteran’s service-connected disabilities preclude him from engaging in substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). 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 disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). An inability to work due to advancing age may not be considered. 38 C.F.R. §§ 3.341(a), 4.19. In its determination, VA considers such factors as the extent of the service-connected disability, and employment and educational background. See 38 C.F.R. §§ 3.340, 3.341, 4.16(b), 4.19. *** In a June 2017 TDIU application, the Veteran indicated that he last worked full-time on August 8, 2008. At the time, he had been working for two years as a clerk for a veterans service organization. Information received from this veterans service organization indicates that the Veteran did additional part-time work (20-25 hours per week) from February 2011 to November 2012, as part of VA work-study program. 08/24/2017, VA 21-4192 Request for Employment Information in Connection with Claim for Disability. Regarding his education level, the Veteran has reported two years of college. 06/30/2017, VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. The June 2017 TDIU application references prior work as a driver (2004) and janitor (2006), and failed attempts to obtain employment as a salesperson at two major retail stores in 2008. Prior to December 18, 2012, service connection is in effect for the Veteran’s left knee (20 percent), left shoulder (20 percent), lumbar spine (20 percent), left lower extremity radiculopathy (20 percent) and a scar on the left knee (noncompensable). Resolving doubt in favor of the Veteran, the Board finds that a TDIU is warranted for the period between August 9, 2008 (day after he last worked full-time) and December 18, 2012. A TDIU is not warranted prior to August 9, 2008, as the evidence established that the Veteran was able to work full-time during that period. For the period between August 9, 2008, and December 18, 2012, the evidence shows that, from February 2011 to November 2012, the Veteran worked part-time (20-25 hours per week) as a clerk for a veterans service organization, as part of VA work-study program. Based on the part-time basis and nature of this employment, the Board finds that it meets the definition of marginal work or work in a protected environment. 38 C.F.R. § 4.16(a). As such, it is not evidence of substantially gainful employment.   The Veteran’s service-connected disabilities clearly limited the Veteran’s ability to do physical work during the relevant period. Insofar as the evidence suggests that the Veteran may have been able to do non-physical work during the period under consideration, the Board finds that such option is simply not realistic given the Veteran’s work and education history. In fact, the record shows that the Veteran applied for vocational rehabilitation in April 2018. While it was determined that the Veteran was eligible for VA vocational rehabilitation services, a vocational rehabilitation counselor determined that it was not feasible for the Veteran to benefit from a program designed to return him to gainful employment. 04/20/2018 & 06/15/2018, VR&E-General. The Board finds that this rationale is applicable to the period under consideration, since the Veteran appears to have had consistent symptoms throughout this period. Finally, the Board notes that records from the Social Security Administration (SSA) indicate that the Veteran was determined to be disabled, effective August 9, 2000, based on a primary diagnosis of osteoarthritis and allied disorders. The Veteran’s service-connected left knee, left shoulder, and lumbar spine disabilities are form of arthritis. As such, the SSA determination lends support to the Veteran’s assertion that he is unemployable for purposes of entitlement to a TDIU for VA compensation. (Continued on the next page)   When reasonable doubt is resolved in the Veteran’s favor, the Board finds that, for the period between August 9, 2008, and December 18, 2012, the Veteran’s service-connected disabilities were as likely as not of such nature and severity as to prevent him from securing or following substantially gainful employment. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. As such, entitlement to a TDIU is warranted for that period. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. López, 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.