Citation Nr: 21011819 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 10-45 555 DATE: March 2, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) on an extraschedular basis is granted. FINDING OF FACT The probative evidence of record is at least in equipoise that the Veteran’s service-connected disabilities render him unable to secure and maintain substantially gainful employment. CONCLUSION OF LAW The criteria for entitlement to TDIU on an extraschedular basis have been met. 38 U.S.C.§§ 1155, 5107; 5110, 38 C.F.R. §§ 3.340, 3.400, 4.3, 4.7, 4.15, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 1980 to October 1981. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This matter was last before the Board in July 2012, December 2017, and November 2020, when it was remanded. Total disability ratings for compensation may be assigned, where the schedular rating is less than 100 percent, 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 one or more service-connected disabilities without regard to advancing age. 38 C.F.R. §§ 3.341(a), 4.16(a). A “schedular TDIU” can be assigned if the disabled person is 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, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). In exceptional circumstances, where the veteran does not meet the percentage requirements for a TDIU, a total rating nonetheless may be assigned on an extraschedular basis upon a showing that the individual is indeed unable to obtain or retain substantially gainful employment because of a service-connected disability or disabilities. 38 C.F.R. § 4.16(b). In this case, the Veteran’s service-connected disabilities include degenerative joint disease of the lumbar spine, rated at 40 percent since March 2009, and osteoarthritis of the left great toe, rated noncompensable from August 1996, 10 percent from October 1998, and currently rated at 20 percent from July 2009. The Veteran’s highest combined service-connected disability rating during the appeal period is 50 percent. As two or more service-connected disabilities require at least one must be rated at 40 percent or more, with the combined rating 70 percent or more, the Veteran does not meet the schedular requirements at any point during the appeal period. Consideration on an extraschedular basis is thus warranted. Pursuant to the Board’s November 2020 remand, this matter was referred to the Director of Compensation Service (Director) for consideration of TDIU on an extraschedular basis. Opinions from November 2020 and January 2021 found that a TDIU on an extraschedular basis was not warranted, stating the evidence of record did not demonstrate the Veteran has difficulty obtaining and retaining employment due to service-connected disabilities. Concerning this determination, the Board is not bound by an adverse determination by the Director regarding extraschedular entitlement to a TDIU. The United States Court of Appeals for Veterans Claims has determined that the Director’s decision is in essence a decision by the agency of original jurisdiction¬¬¬¬¬¬ and is no different than an 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). Further, the Board finds that the Director’s determination that TDIU on an extraschedular basis is not warranted is not persuasive, as the Director did not adequately address or discuss the Veteran’s work history, education level or any of the evidence he presented regarding his ability to follow gainful employment. The record shows that the Veteran reported becoming too disabled to work in the 1990s and last worked as a security guard and maintenance worker at a convenience store but stopped working because he could not walk, sit, or stand for prolonged periods of time due to the constant pain in his back and left toe. The evidence of record consistently shows the Veteran reporting being unable to obtain employment due to his service-connected back and left toe disabilities. The record also shows the Veteran reported needing help with personal tasks such as getting out of the bathtub and grooming when in pain, as well as being unable to perform any past relevant work as his physical functional limitations require him to walk with a cane on a regular basis; experience decreased mobility; be unable to sit or stand for prolonged periods of time, and unable to bend over, lift or carry heavy objects; and experience sleep disturbances due to the pain. In addition, multiple VA physician statements have been submitted that indicate the Veteran’s back and toe conditions limit his ability to sit, walk, or stand for a full workday and lift/carry objects. February 2010 and May 2014 statements by the Veteran’s treating VA physicians state, respectively, that the Veteran’s “situation had not changed, and he should still be considered disabled and as such he is unemployable” and that he “is non-employable due to medical conditions such as depression, anxiety and back pain.” Moreover, VA examination reports throughout the record show the examiners noting the Veteran’s functional loss due to his service-connected disabilities, including weakened/less movement, pain on movement, fatigability, and lack of endurance. The examiners also noted the Veteran’s back condition as having a moderate to severe impact on his employment due to the pain, limited range of motion, limited ability to lift/carry or engage in prolonged sitting or standing. The examiner also noted additional functional limitations during flare-ups of his back. In weighing the evidence of record, the Board finds the Veteran’s statements throughout the appeal period to be competent and credible, as well as the treating VA physicians’ statements while the Veteran was under their care to be the most probative in determining whether TDIU on an extraschedular basis is warranted. Taken together, the medical evidence reasonably supports a finding that the Veteran’s service-connected back and left great toe disabilities preclude his employability throughout the entire appeal period. The Board finds it unlikely that the Veteran would be able to secure or follow substantially gainful employment as a result of the functional impact of his service-connected disabilities, especially in light of his post-service occupational history of working in physically demanding jobs such as a security guard and maintenance worker. In light of the forgoing, the Board finds the evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities rendered him unable to secure or follow substantially gainful employment throughout the entire appeal period. After resolving doubt in favor of the Veteran, the Board finds that he is entitled to a TDIU on an extraschedular basis, due to his service-connected disabilities. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Ariasaif, 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.