Citation Nr: 21012476 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-01 415 DATE: March 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) is granted. FINDING OF FACT The Veteran’s service-connected disabilities preclude her from obtaining or maintaining gainful employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1990 to July 1999. This matter comes before the Board of Veterans’ Appeals (Board) from a February 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The issue was initially before the Board in August 2018, where it was remanded for additional development along with a claim of entitlement to service connection for bilateral hip disabilities. Subsequent to the Board’s remand, the hip disability claims were granted. Thereafter, the TDIU claim returned to the Board in July 2020 where it was again remanded. The Veteran appeared at a hearing before the undersigned Veterans Law Judge in April 2018. The Veteran’s private attorney withdrew representation in July 2020. The Veteran has not appointed another power of attorney and is currently unrepresented. TDIU The Veteran asserts that she is unable to secure and follow a substantially gainful occupation as a result of her service-connected disabilities. Based on the following, the Board finds that a TDIU is warranted. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In arriving at a conclusion, 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. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims (Court) has held that the term “unable to secure and follow a substantially gainful occupation” in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran’s ability to “follow and secure” employment. For the second component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such 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). In this case, the Veteran meets the schedular requirements since July 28, 2020 as she has a combined 70 percent rating and a rating greater than 40 percent for her low back disability and lower extremity radiculopathy and hip disabilities associated with the low back disability. See 38 C.F.R. § 4.16(a) (disabilities resulting from common etiology can be considered a single disability). Regarding the remaining time during the appeal, veterans who are unable to secure gainful employment by reason of service-connected disabilities but fail to meet the percentage criteria in 38 C.F.R. § 4.16(a) may receive extra-schedular consideration under 38 C.F.R. § 4.16(b). Significantly, the Board has no power to award a TDIU on an extra-schedular basis under 38 C.F.R. § 4.16(b) in the first instance without referring the claim to VA’s Director of Compensation Service (Director) for such consideration. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). If, and only if, the Director determines that an extra-schedular evaluation is not warranted, does the Board then have jurisdiction to decide the extra-schedular TDIU claim on the merits. See Anderson v. Shinseki, 22 Vet. App. 423 (2009). The Board most recently remanded this matter for a decision by the Director regarding an extra-schedular TDIU. While no VA or private medical examiner had opined that any one service-connected disability has rendered the Veteran unemployable, she has asserted in multiple lay statements that it is the combined effects of her service-connected disabilities that render her unemployable. In addition, while physical limitations do not necessarily preclude sedentary employment, the Veteran’s TDIU application reflected an employment history in various non-sedentary roles, and only a high school diploma with no additional education or training. The record reflects that the Director’s decision was received in November 2020, where she considered the functional effects of the Veteran’s service-connected low back disability. She also considered the Veteran’s statements that she has not worked for years due to her disabilities, and that she was awarded Social Security Administration (SSA) benefits due to this low back disability as well as obesity. The Director concluded that the available evidence did not support the Veteran’s contention that her service-connected disabilities alone prevented all types of gainful activity, and that a TDIU on an extraschedular basis should be denied. Subsequent to the Board’s second remand, service connection was awarded for right lower extremity radiculopathy and the Veteran is now schedularly eligible for a TDIU for part of the appeal period as explained above. As noted above, the Board finds that a TDIU is warranted. Military personnel records reflect the Veteran’s military occupation specialty was that of a Mobile Subscriber Equipment (MSE) Network Switching Systems Operator. While she underwent a leadership development course in service, there is no indication of any actual supervisory role. On her application for unemployability in August 2013, she reported that back, knee, and hip disabilities prevented her from following a substantially gainful occupation, and that she last worked full-time in April 2012 as a “laborer” for Hewlett Packard. Her employment history also consisted of various other physical, non-sedentary occupations, including as a cook and mail handler. She also reported completing high school, but had no other education or training. During the period on appeal, the Veteran presented for several VA examinations pertaining to her back, peripheral nerve, knee, and hip disabilities, at which time she was interviewed by the examiners who also reviewed the pertinent medical history and performed physical examinations. The Veteran reported pain with walking, standing, and sitting for extended periods of time, including limited range of motion due to her service-connected disabilities that make it difficult for her to climb stairs, squat, bend, and lift. She also reported that flare-ups of musculoskeletal pain result in the Veteran having to lay down. She has been noted to ambulate with a cane and walked with an antalgic gait, and has been prescribed pain medication including oxycodone and hydrocodone. Treatment records during this period are not in significant conflict with findings during the VA examinations, with the Veteran reporting ongoing back and lower extremity pain, sometimes incapacitating, and treated with prescription and over-the-counter pain medication. Given the Veteran’s lack of an education beyond high school, her primary employment in physical labor, and no indication of any, supervisory, administrative, or computer skills, the Board finds it unlikely that sedentary employment, i.e., a desk job, would have been likely for this Veteran. Her service-connected disabilities preclude walking, standing, and sitting for extended periods of time, which would rule out most types of physical labor. Therefore, the Board finds the evidence is at least in equipoise as to whether her service-connected disabilities have rendered her unable to secure or follow a substantially gainful occupation. Accordingly, entitlement to a TDIU is granted. Nathan Kroes Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.