Citation Nr: 21011451 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 13-00 132 DATE: March 1, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis, prior to February 8, 2012, is granted. FINDING OF FACT 1. Prior to February 8, 2012, the Veteran was service-connected for chronic bronchitis, rated as 10 percent disabling and posttraumatic stress disorder (PTSD), rated as 30 percent disabling. His combined rating was 10 percent disabling from November 30, 2010 and 40 percent disabling from May 2, 2011. 2. Prior to February 8, 2012, the Veteran’s service-connected PTSD and chronic bronchitis caused symptoms so severe as to preclude him from maintaining gainful employment. CONCLUSION OF LAW Resolving doubt in the Veteran’s favor, the criteria for a finding of a TDIU under 38 C.F.R. § 4.16 (b), prior to February 1, 2012, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 4.3, 4.16(b), 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from April 1967 to January 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). In January 2015, the Veteran testified before the undersigned Veterans Law Judge (VLJ). A copy of the transcript has been associated with the Veteran’s electronic claims folder. In April 2019, the Board remanded the matter for further development, to include obtaining clarification of the Veteran’s employment status during the period on appeal. The Board finds that there has been substantial compliance with its’ remand directives. Entitlement to TDIU, prior to February 8, 2012 The Veteran contends that he is entitled to TDIU, prior to February 8, 2012, because his service-connected disabilities caused him to experience frequent periods of hospitalizations that interfered with his ability work. For the reasons explained below, the Board finds that entitlement to TDIU, prior to February 8, 2012, is warranted. Total disability ratings for compensation may be assigned, where 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, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16 (a). Prior to February 8, 2012, the Veteran was service connected for chronic bronchitis, rated as 10 percent disabling and posttraumatic stress disorder, rated as 30 percent disabling since May 2, 2011. His combined rating from November 20, 2010 was 10 percent disabling and 30 percent disabling since May 2, 2011. Therefore, prior to February 8, 2012, the criteria for a TDIU under 38 C.F.R. § 4.16 (a) was not met. Even when the criteria under 38 C.F.R. § 4.16 (a) are not met, entitlement to a TDIU 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. Bowling v. Principi, 15 Vet. App. 1 (2001). Rating boards will refer to the Director of the Compensation Service for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). In its July 2018 remand, the Board referred the Veteran’s claim to the VA Director of the Compensation Service, for extraschedular consideration under the provisions of 38 C.F.R. § 4.16 (b). The Director of Compensation Service considered whether extraschedular consideration was warranted in an August 2018 decision and determined that individual unemployability benefits were not warranted. In that regard, the Director found that the Veteran’s service connected bronchitis and PTSD did not render him unemployable prior to February 8, 2012 because there was no evidence of frequent periods of hospitalizations or evidence that the Veteran’s bronchitis or PTSD symptoms interfered with his ability to maintain substantially gainful employment. Consequently, as the claim has been denied on an extraschedular basis by the Director of Compensation Service, the Board may now consider whether a TDIU is warranted under the provisions of 38 C.F.R. § 4.16 (b). At the January 2015 Board hearing, the Veteran testified that he was having extreme problems with his bronchitis. See Board Hearing Transcript, p. 52. He also testified that he felt very fatigued due to his heart disability. Id. at. 44-45. The record shows that the Veteran has been unemployed since 2008. See Veteran’s April 2019 VA Form 21-8940. The Veteran’s VA Form 21-8940 indicates that he previously was self-employed in the janitorial/boat detailing field. His highest level of education was a college degree in Christian education. VA treatment records indicate that, prior to February 8, 2012, the Veteran was treated frequently for symptoms of his service-connected bronchitis and occasionally his PTSD. In that regard, there is evidence that he sought both emergency and non-emergency treatment for symptoms of difficulty breathing and pneumonia. In a May 2017 letter from D.C., certified rehabilitation counselor, D.C. opined, “It is my professional opinion that if an individual is going to miss two or more days of work per month, they will not be able to sustain work . . .[the Veteran’s] history of emergency room visits, hospital admissions and ongoing medical treatment will interfere with the performance of work and will lead to being dismissed.” Although it does not appear that he had frequent emergency room visits or hospitalization admissions (as represented in the May 2017 representative’s brief), there is evidence that he had frequent treatment/doctor visits. The Board assigns probative value to the VA treatment records which document the Veteran’s frequent in-person interactions with a VA facility. The Board agrees with the vocational rehabilitation specialist that these frequent visits would equate to absences from work and constitute marked interference with employment required for the criteria under 38 C.F.R. § 4.16 (b). It is unlikely that any employer would make allowances for so many absences. Further, on the Veteran’s most recent VA Form 21-8940, he indicated that although he was previously self-employed, he had not worked in this capacity since September 2009. Although there is evidence that he was seen for non-service connected disabilities such as knee problems and heart problems (he was not service-connected for a heart disability until February 8, 2012), the Board finds that there is sufficient evidence to attribute the Veteran’s frequent medical visits to his service-connected disabilities. Resolving doubt in favor of the Veteran, the claim of entitlement to TDIU, prior to February 8, 2012, on an extraschedular is granted. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Baskerville, LaRita 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.