Citation Nr: 21012018 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 10-02 489 DATE: March 3, 2021 ORDER Entitlement to an extraschedular total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. FINDING OF FACT The record reasonably shows that the combination of the Veteran’s service-connected disabilities precludes him from securing or following a substantially gainful occupation. CONCLUSION OF LAW The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from September 1973 to May 1984. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision that was issued by the Department of Veterans Affairs (VA) Regional Office (RO). In October 2015, November 2019 and August 2020, the Board remanded this case for further development. TDIU The Veteran reported that he is entitled to TDIU benefits due to him not being able to secure or follow any substantial gainful occupation since he became too disabled to work on 2017. See Veteran’s VA 21-8940 (February 2020). In support, the Veteran’s stated that he could not work due to his service-connected disabilities. See VA medical examinations (February and March 2018). Indeed, on February and March 2018 VA examiners stated that the Veteran’s service-connected conditions impact his ability to work. Id. The Veteran completed one year of college and no other education. He worked as a housekeeper. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 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 in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Under the applicable criteria, total disability ratings based on individual unemployability 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16. For the purpose of meeting these schedular criteria, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable; disabilities resulting from common etiology or a single accident; disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric; and multiple injuries incurred in action, will be considered as one disability. See 38 C.F.R. § 4.16 (a). It is also 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. Therefore, rating boards should submit to the Director, 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 standards set forth in paragraph (a) of this section. The rating board will include a full statement as to the veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. See 38 C.F.R. § 4.16 (b). The Board is required to obtain the Director's decision before it may award extraschedular TDIU. Wages v. McDonald, 27 Vet. App. 233, 236 (2015). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: • The veteran’s history, education, skill, and training; • Whether the veteran has the physical ability (both exertional and non-exertional) 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 • 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 (2019). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. See 38 C.F.R. § 4.16(a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system e.g. orthopedic are considered as one disability. Id. 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 circumstance.” See Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)). Therefore, in adjudicating a TDIU claim, VA must take into account the individual Veteran’s education, training, and work history. See Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor). The Board notes that the decision of the Director, Compensation Service, is not nonbinding on the Board. The Board reviews the entirety of the Director's decision de novo and is thus authorized to assign an extraschedular rating when appropriate. Wages. After a thorough review of the record, the Board finds that the functional limitations imposed by the Veteran’s service-connected conditions precludes him performance of substantially gainful employment. His record clearly indicates the severity of his service-connected disabilities, including medical treatment, surgical and non-surgical procedures, medications, and physical limitations. In reaching this determination, the Board notes that the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). As the Federal Circuit made clear in Geib, “VA [is] not required to obtain a single medical opinion that address[es] the impact of all service-connected disabilities on [the veteran’s] ability to engage in substantially gainful employment.” Id. After resolving any reasonable doubt as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), the evidence supports the conclusion that the Veteran’s service-connected disabilities prevent him from securing and following substantially gainful employment consistent with his education, training and work experience.. The lay and medical evidence of record makes it at least as likely as not that the Veteran's service-connected conditions have precluded substantial gainful employment consistent with his general education and labor-intensive occupational experience. Based on the evidence, the Board, as a finder of fact, concludes that the evidence supports a finding that the functional impairment associated with the Veteran’s service-connected disabilities is of such nature and severity as to preclude substantially gainful employment. Thus, the Board finds that the disabilities does render the Veteran unable to secure substantially gainful employment in this particular case. In light of the foregoing, the Board concludes that entitlement to TDIU on an extraschedular basis is warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Alvarado- 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.