Citation Nr: 21011995 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 16-00 156A DATE: March 3, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis, is granted. FINDING OF FACT The evidence reasonably shows that the Veteran was prevented from securing and following substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW The criteria for entitlement to a TDIU, on an extraschedular basis, have been met. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.1, 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty in the U.S. Navy from August 1955 to August 1974. The issues are on appeal from a June 2014 rating decision. The issue was previously before the Board of Veterans’ Appeals (Board) in December 2017 and August 2020, when it was remanded for additional adjudication. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), to include on an extraschedular basis The Veteran originally requested an unemployability determination in a VA Form 21-8940 received in October 2018. Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when 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). Here, service connection is currently in effect for bronchial asthma, evaluated as 30 percent disabling; insomnia with urinary frequency associated with prostate cancer, evaluated as 30 percent disabling; left knee post-operative residuals, evaluated as 20 percent disabling; prostate cancer, evaluated as 20 percent disabling; post-operative residuals for an ulcer, evaluated as 10 percent disabling; and noncompensable evaluations for ulcer post-operative scars, left knee scars, and erectile dysfunction. He had a combined disability evaluation of 70 percent, effective June 25, 2013. Therefore, the Veteran’s service-connected disabilities do not meet the criteria for the assignment of a TDIU on a schedular basis. See 38 C.F.R. § 4.16. Where, as here, the Veteran does not meet the schedular criteria for a TDIU, an extraschedular TDIU may be warranted where the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Unlike the regular disability rating schedule which is based on the average work-related impairment caused by a disability, “entitlement to a TDIU is based on an individual’s particular circumstances.” Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: (1) the veteran’s history, education, skill, and training; (2) whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and (3) whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran’s limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Although the Board is required to obtain the Director of Compensation Services decision before awarding extraschedular TDIU benefits in the first instance, it is not bound by the Director’s decision or otherwise limited in its scope of review of that determination. Wages v. McDonald, 27 Vet. App. 233, 236-38 (2015) (citing 38 U.S.C. §§ 511(a), 7104(a) (2012); 38 C.F.R. § 4.16(b)). Here, in December 2020, the Director denied entitlement to an extraschedular TDIU. Accordingly, the Board has jurisdiction over the issue of entitlement to an extraschedular TDIU. The Director denied extraschedular TDIU, citing that the medical evidence of record does not support the Veteran’s contention that his service-connected conditions prevented all substantive employment. The Board disagrees for reasons that are outlined below. Contrary to the finding made by the Director of Compensation Services, the Board finds that entitlement to a TDIU, on an extraschedular basis, is warranted. As an initial matter, the Board notes that the Director’s decision is not evidence, but, rather, the de facto Agency of Original Jurisdiction decision, and the Board must conduct de novo review of this decision. Wages, 27 Vet. App. at 238-39. In this case, the question for the Board is whether the Veteran was shown to be unable to secure or follow a substantially gainful occupation due to his service-connected disabilities. Regarding his educational history, the Veteran’s highest grade of education completed is two years of high school and he earned his GED. He also attended and received training at a welding school. As for his occupational history, the Veteran was employed by the Army National Guard as a mechanic foreman in a civil service position for over 22 years following separation from service. He retired in April 1998. A review of the record indicates that the Veteran was afforded several VA examinations for his service-connected disabilities which have included opinions on his employability. Notably, in October 2013, the Veteran’s back disability was found to functionally impact his ability to work by the examiner. The Veteran also reported that he was forced to change his employment to that of a civil service laborer and painter due to his breathing issues. The Veteran underwent a private mental disorders examination in July 2015. The Veteran complained that his lack of sleep caused him to become irritable and to tire easily. He reported having low motivation and energy, and that he could never get a project done due to his difficulty concentrating. Ultimately, the Veteran explained that he had difficulty keeping up with the demands of his job and that the stress had required hospitalization a few times. The private examiner concluded that the Veteran could not sustain the stress from a competitive work environment or be expected to engage in gainful activity due to his insomnia disorder; in fact, the examiner opined that the Veteran’s service-connected physical issues continued to manifest as and cause his service-connected insomnia disorder. In May 2017, a private vocational consultant submitted a letter opining that, after reviewing the Veteran’s medical records, the combination of his severe physical and mental service-connected disabilities would permanently preclude the Veteran from performing work at a substantial level. She explained that the maximum number of sick days needed by a normal and average individual, a number reached based on vocational studies, would be insufficient for the number of sick days required by the Veteran due to the manifestations of his service-connected disabilities. Further, his ability to concentrate was hampered by his physical disabilities and is at a level less than the minimum expected for competitive employability. The Veteran was afforded a VA examination for his service-connected left knee disability in October 2018. Here, the examiner explained that the left knee disability rendered it difficult for him to walk more than 10 minutes, bear weight for long periods of time, or use the stairs. The left knee disability also prevented the Veteran from motions such as squatting or bending to pick up objects without significant pain. The remainder of the Veteran’s VA examinations note that his service-connected disabilities do not impose a functional impact on his ability to work. The Board notes that the Veteran’s only professional experiences include physically laborious work as a welder. Given that the medical history concludes that the Veteran would have difficulty in any laboring field, as he has difficulty breathing; is prevented from range of motion in his left knee such as squatting, bearing weight for long periods of time, or bending; and has difficulty concentrating on tasks due to his lack of sleep and physical pain, the Board concludes that the Veteran’s service-connected disabilities would have precluded him from carrying out the physical requirements of employment as a welder and the physical tasks associated with his experience as a welder. In this case, the evidence shows that the Veteran’s service-connected disabilities preclude him from performing employment consistent with his experience as a welder. Accordingly, the Board finds that the Veteran’s service-connected disabilities impose physical and mental impairments that would reasonably preclude him from undertaking substantially gainful employment consistent with his education, training, and occupational experience as a welder. When there is an approximate balance of positive and negative evidence regarding any issue material of the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5017; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Based on the foregoing, and resolving all doubt in favor of the Veteran, the Board finds the evidence is at least in equipoise as to whether the service-connected disabilities preclude him from maintaining substantially gainful employment, consistent with his education and occupational experience. As such, entitlement to a TDIU, on an extraschedular basis, is granted. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Lee 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.