Citation Nr: 21011742 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 14-19 632 DATE: March 2, 2021 ORDER An earlier effective date of April 28, 2008 for total disability and individual unemployability (TDIU) on an extraschedular basis (38 C.F.R. § 4.16(b)) is granted. FINDING OF FACT From April 28, 2008 onward, the Veteran's service-connected disabilities rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW From April 28, 2008, the criteria for an award of a TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(b).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from September 1966 to September 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In an August 2020 Board decision, the TDIU matter was remanded to allow for implementation of the grant of service connection for duodenal ulcer, status post-partial gastrectomy, in the same decision. The RO assigned a noncompensable rating from December 2008 and a compensable rating from August 2018. Therefore, an earlier effective date prior to August 29, 2011 on an extraschedular basis is still on appeal. Additionally, since this matter was previously forwarded to the Director of Compensation who denied a TDIU on an extraschedular basis, the Board can now consider whether an a TDIU on an extraschedular basis is warranted. See Bowling v. Principi, 15 Vet. App. 1. (2001). An earlier effective date of April 28, 2008 for TDIU is granted. Total disability ratings for compensation may be assigned, 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). It is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled, notwithstanding the fact that the assigned schedular ratings do not equal 60 percent for a single disability or 70 percent for a combined disability. 38 C.F.R. § 4.16(b). Thus, if a Veteran fails to meet the rating enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating should be considered if the Veteran is unemployable due to a service-connected disability. 38 C.F.R. § 4.16(b). When making this determination, VA may not consider non-service-connected disabilities or advancing age. 38 C.F.R. § § 3.341, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstances." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, when the Board conducts a TDIU analysis, it must consider the individual veteran's education, training, and work history. See Pederson v. McDonald, 27 Vet. App. 276, 286 (2015) (en banc) (stating that "when the Board conducts a TDIU analysis, it must take into account the individual veteran's education, training, and work history"). Analysis The Veteran was granted a TDIU with an effective date of August 29, 2011, which was the date the Veteran met the schedular requirements for a TDIU. Since the grant of service connection for duodenal ulcer, status post-partial gastrectomy, was noncompensable during the period on appeal, the Board must determine whether the Veteran is entitled to a TDIU on an extraschedular basis. TDIU prior to November 1, 2007 The Veteran last worked full time on October 31, 2007 as a senior inspector at E.I. Dupont-Axis earning $82,523.00 per year. See VA 21-8940 Veteran Application for an Increased Compensation based on Unemployability received 6/17/2013. In his application for increased compensation based on unemployability, the Veteran stated that he left his position due to his service-connected issues, specifically, “stomach, prostate cancer, PTSD and hearing” and reported that he was a high school graduate. Id. at page 2. The Board finds that the Veteran was gainfully employed prior to November 1, 2007 because his salary was well above 2007 poverty guidelines, e.g., a family of 8 persons poverty guideline is $34,570. See https://aspe.hhs.gov/2007-hhs-poverty-guidelines. Additionally, the Board finds that during this time the Veteran was able to secure and follow gainful employment since the Veteran was employed in a senior position for 32 years.   TDIU from November 1, 2007 The Veteran is service connected for: left and right inguinal herniorrhaphy since September 1969; bilateral hearing loss and tinnitus since April 2008; depressive disorder since August 2008; and prostate cancer and duodenal ulcer, status post-partial gastrectomy, since December 2008. The combined evaluations were: 0 percent from 9/16/1969, 10 percent from 4/25/2008, 20 percent from 8/27/2008, 100 percent 12/17/2008 (active prostate cancer), 50 percent from 11/30/2010, 100 percent from 3/18/2011(under 38 C.F.R. § 4.29 for PTSD), 50 percent from 6/01/2011, and 70 percent from 8/29/2011, the current effective date for TDIU on a schedular basis. See VA Memo received 1/03/2019 at page 2. The Board finds that a TDIU on an extraschedular basis is warranted from April 28, 2008 since the evidence is at least in equipoise that the Veteran’s service-connected disabilities caused him to be unable to secure and maintain gainful employment under 38 C.F.R. § 4.16(b). From November 1, 2007 to April 27, 2008, the Board finds that a TDIU on an extraschedular basis is not warranted because the Veteran’s sole service-connected disability was left and right inguinal herniorrhaphy which were noncompensable. Additionally, the available treatment records do not show that it caused him to be unable to secure or follow substantially gainful employment. Relatedly, the Veteran’s treatment records show that he stated to his providers that he stopped working because he was laid off (due to plant closure) and not due to his service-connected disabilities. See Capri received 5/16/2008 at page 14; see also Capri received 7/31/2008 at page 26. A review of the Veteran’s medical record shows that his service-connected depressive disorder caused nightmares, social isolation, sleep disturbance, poor concentration and hypervigilance. See Capri received 5/16/2008 at page 9. The Veteran’s GAF scores under the DSM-IV, which was applicable at the time, ranged from 41-50 signifying serious impairment in social and occupational functioning. See Capri received 7/31/2008 at pages 8 & 27. Relatedly, though the Veteran was never hospitalized nor attempted suicide, his April 2008 medical record shows that he expressed to his provider that he no longer wanted to live. See Capri received 7/31/2008 at page 26. In addition to his mental health condition, the Veteran was diagnosed with prostate cancer in November 2008. The Veteran’s March 2009 prostate cancer treatment required him to receive radiation therapy 5 times a week. See Medical Treatment Record received 4/30/2009 at page 1. The same treatment note showed that the Veteran had abdominal pain and knots in the inguinal area that the provider expressed may relate to his radiation treatment. Id. at page 4. The Board recognizes that the Veteran received a temporary 100 percent disability rating from December 2008, however even after the Veteran’s cancer was inactive, the Veteran had voiding which required him to use the bathroom every 90 minutes during daytime hours. See VA examination received 12/21/2009 at page 1. In addition to the Veteran’s medical treatment records, the Board also reviewed the Veteran’s SSA records. The Veteran has been drawing disability benefits as “totally disabled” since April 2008. See Third Party Correspondence received 11/12/2009. In the SSA records, the Veteran stated that he was unable to do heavy lifting, prolonged standing, and had difficulty concentrating. See Medical Treatment Records furnished by SSA received 3/18/2009 at page 10. His major depressive disorder was determined to be recurrent, moderate to severe. See Medical Treatment Records furnished by SSA received 3/19/2009 at page 48. (CONTINUED ON THE NEXT PAGE)   The Veteran’s additional service-connected disabilities of bilateral hearing loss, tinnitus, and left and right inguinal herniorrhaphy also contributed to the Board’s determination that the Veteran was unemployable after April 28, 2008. In finding the Veteran unemployable after April 28, 2008, the Board finds that his frequent weekly treatments for prostate cancer, moderate to severe depression for the period on appeal, and voiding that required him to use the bathroom every 90 minutes during the daytime, caused him to be unable to secure or follow substantially gainful employment. 38 C.F.R. §§ 4.3, 4.16(b). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Dixon, 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.