Citation Nr: 21011649 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 12-12 073 DATE: March 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis prior to January 13, 2014, is granted. FINDING OF FACT Since December 19, 2012, the Veteran’s service-connected disabilities have precluded him from obtaining and maintaining substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU, to include on an extraschedular basis prior to January 13, 2014, are met. 38 C.F.R. §§ 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1990 to May 1995, with additional service in the Alabama National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. This matter has been before the Board previously, most recently in April 2020. At that time, the Board remanded the TDIU claim in order to refer it to the Director of Compensation Services for consideration of assigning a TDIU on an extraschedular basis prior to January 13, 2014. As the record reflects that the referral has been accomplished, the Board finds that there has been substantial compliance with the remand directives. Entitlement to a TDIU, to include on an extraschedular basis prior to January 13, 2014, In order to be entitled to a TDIU, the evidence must show that the Veteran was incapable “of performing the physical and mental acts required” to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran’s education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A TDIU 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 as a result of either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). Even if a Veteran’s service-connected disabilities do not meet the schedular requirements for a TDIU, “[i]t is the established policy of the Department of Veterans Affairs 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.” 38 C.F.R. § 4.16(b). For this reason, a TDIU may still be assigned on an extraschedular basis to a Veteran whose disability ratings fail to meet the required minimums. Where this is warranted, the claim must first be referred by the Agency of Original Jurisdiction (AOJ) to the Director of the Compensation Service for extraschedular consideration. Thereafter, the Board may review the decision of the Director and make an independent determination on the matter. Wages v. McDonald, 27 Vet. App. 233, 238 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). Here, the Veteran is service connected for the following conditions: (1) nerve damage to the left arm, residual to a fracture (rated as 10 percent effective December 15, 2008 and 40 percent effective January 13, 2014); (2) post-traumatic stress disorder (PTSD) (rated as 30 percent effective December 15, 2008); (3) status post left tympanic membrane injury, laceration of the left ear, re-attachment surgery and drainage of perilymph fluid with scar (rates as noncompensable effective December 15, 2008 and 30 percent effective March 5, 2014); (4) gastroesophageal reflux disease (GERD) (rated as 10 percent effective June 18, 2009 and 30 percent effective March 5, 2014); (5) status post radio-ulna left forearm fracture with limitation based on supination and pronation (rated as 20 percent effective March 5, 2015); (6) tendinitis, status post right elbow epicondylitis (rated as 10 percent effective December 15, 2008); (7) status post radio-ulna left forearm fracture with limitation of flexion/extension (rated as 10 percent effective December 15, 2008); (8) tinnitus of the left ear (rated as 10 percent effective December 15, 2008); (9) scar of the left forearm (rated as 10 percent effective December 15, 2008); (10) maxillary and frontal sinusitis (rated as 10 percent effective March 5, 2014); (11) allergic rhinitis and sinusitis (rated as noncompensable effective June 18, 2009 and 10 percent effective March 5, 2014). The Veteran’s combined disability ratings are 60 percent effective December 15, 2008, 80 percent effective January 13, 2014 and 90 percent effective March 5, 2014. The Veteran is qualified for a TDIU on a schedular basis as of January 13, 2014. The record reflects that the Veteran is a high school graduate with some junior college credits and training for commercial driving. The Veteran was employed as a truck driver following service but stopped working in that capacity in March 2009, when he was terminated due to his inability to perform driving duties as a result of his left arm disabilities. The Veteran attempted to work at an auto parts store in 2019 but was unable to continue after two weeks. The Veteran contends that his physical and mental constraints prevent him from obtaining and retaining employment. The Veteran stated in his April 2015 TDIU application that he was unable to manipulate the steering and shifting mechanics because of his arm disabilities and was unable to deal with people due to his PTSD. The Veteran also submitted a lay statement in May 2012 noting that he could not work because of his left arm pain, PTSD, and GERD. In support of his claim, the Veteran submitted a December 2019 private vocational assessment report. The private evaluator reviewed the Veteran’s medical records and interviewed the Veteran. The report noted that the Veteran’s physical limitations included difficulty in handling/grasping/fingering due to pain and numbness in his left arm, caused him to frequently drop items, resulted in pain on reaching bilaterally, and an inability to carry more than a gallon of milk in either upper extremity. The report also noted that the Veteran experienced panic attacks in public a few times per week, and experienced depression, impaired energy and motivation and problems with simple tasks. The report also addressed the limitations caused by the Veteran’s tinnitus, GERD, sinusitis and allergic rhinitis. According to the report, the Veteran exhibited significant limitations in concentration and memory as a result of PTSD and pain, resulting in daily difficulty with concentration and completing tasks, including comprehending and retaining information, starting in March 2013. The report opined that, based on the medical records regarding the Veteran’s limitations related to his left and right arm disabilities, ear condition, sinusitis, allergic rhinitis and PTSD, it was at least as likely as not that the Veteran was unable to secure and follow substantially gainful employment, to include sedentary work, since at least March 2013. The record also contains February 2020 VA medical opinions as to the effects of the Veteran’s service-connected disabilities on his ability to function in an occupational environment. The Veteran’s GERD was noted to cause anxiety and a lack of concentration. His left ear disability was noted to cause difficulty hearing that could result in alteration in communication. The sinusitis was noted to cause episodes of drainage with pressure and headaches that caused anxiety and decreased concentration. The service-connected arm disabilities were noted to cause an inability to lift overhead, push or pull and cause pain and decreased range of motion. The Veteran was noted to have constant pain in his upper extremities with the need for pain medication daily, poor hand dexterity and an inability to concentrate due to pain. The Veteran’s PTSD was noted to include symptoms that would affect his ability to function in an occupational setting, including hypervigilance, exaggerated startle and anxiety around crowds, among others. The Veteran was also noted to have concentration and memory problems that would be a factor in his ability to focus and maintain short-term information. The Veteran was noted to have panic attacks and depressive symptoms that affected his capacity to engage in interpersonal relationships with those outside his immediate family and close friends. The Veteran reported that his tinnitus interfered with his ability to hear and understand conversations, which would cause communication issues with colleagues, employers and customers. The record also contains a December 2012 vocational assessment from a contract Vocation and Rehabilitation counselor noting that the Veteran was not feasible for employment due to his physical and emotional disabilities. A January 2013 private neurology disability determination concluded that the Veteran would not be able to do work-related activities that required him to carry or lift because of pain in his left arm. The determination also noted that the Veteran’s memory was affected and would limit his ability to work. A December 2012 mental status examination for Social Security disability purposes noted that the Veteran’s psychiatric disability would hamper his performance by resulting in decreased concentration, impaired attention to tasks, and inability to maintain pace and impaired persistence related to flashbacks and anxiety. An April 2012 VA examination for the Veteran’s GERD condition noted that the condition would likely impact physical and sedentary labor that required bending at the waist and stooping and would result in the onset of fatigue. A March 2014 VA medical opinion concluded that it was less likely than not that the Veteran was unemployable. According to the VA examiner, the Veteran’s functional ability was only affected by his PTSD and left arm disabilities, but those disabilities did not limit sedentary activities except for those requiring fine motor skills of the left, nondominant hand. March 2014 VA examinations concluded that the Veterans’ scars, ear disability, sinus disability and esophageal conditions did not impact his ability to work. An August 2015 VA examination for the Veteran’s left arm disabilities noted that he was unable to pick up things, would drop things and that he was unable to perform fine motor movements. May 2016 VA examiners noted that the Veteran’s scars, tinnitus, sinus conditions and GERD were not likely to impact physical or sedentary labor. A May 2016 VA examiner for the Veteran’s left arm conditions noted that the nerve damage would mildly impact physical and sedentary labor where excessive use of the left arm was required. As noted, the claim for an extraschedular TDIU was referred to the Director of Compensation Services. The RO recommended against granting a TDIU on an extraschedular basis on the ground that, although the Veteran’s left arm condition impacted certain physical employment tasks, such as driving, the evidence did not show that the Veteran would be precluded from all types of work activities. The November 2020 advisory opinion from the Director of Compensation Services conceded that the Veteran’s service-connected conditions caused functional limitations, but concluded that the preponderance of the evidence did not show that the Veteran was unable to obtain or maintain gainful employment due to his service-connected conditions. In light of the Veteran’s contentions and the foregoing evidence in support of his claim, and resolving reasonable doubt in the Veteran’s favor as mandated by law (38 U.S.C. § 5107(b); 38 C.F.R. § 3.102), the Board finds that a TDIU is warranted from December 19, 2012. In granting entitlement to a TDIU, the Board finds that the Veteran is entitled to a TDIU on an extraschedular basis for the time period from December 19, 2012 to January 13, 2014, as the evidence shows that the Veteran’s service-connected disabilities at that time rendered him unemployable. Since January 13, 2014, the Veteran meets the schedular requirements for a TDIU. In reaching this determination, the Board finds the opinion of the December 2019 private vocational assessment and the December 2012 report from the contract vocational rehabilitation counselor competent and entitled to probative weight. The opinions in those reports are based on a review of the relevant records, an interview of the Veteran and references to relevant vocational literature and research. The private reports, with the February 2020 VA medical opinions and the Veteran’s statements, support a finding that the Veteran was unable to obtain or maintain substantially gainful employment as a result of his service-connected disabilities. In reaching this determination, the Board has also considered the Veteran’s level of education and his primary employment history of working as a truck driver. The Board acknowledges that the Director of Compensation Services issued a November 2020 memorandum that weighed against the Veteran’s claim for an extraschedular TDIU. While the opinion of the Director is important, it is not binding. 38 C.F.R. § 4.16; Wages, 27 Vet. App. at 233 (the Board is authorized to award extraschedular TDIU after obtaining the Director’s decision. The Board is not bound by the Director’s decision in deciding whether to award a TDIU). Considering the private vocational assessments, the Veteran’s lay statements and the VA examinations of record, the Board finds that the evidence is at least in equipoise with respect to whether the Veteran’s service-connected disabilities prevented his from being able to secure and follow a substantially gainful occupation by reason of his service-connected disabilities. 38 U.S.C. § 5107(b). S.C KREMBS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Snyder, 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.