Citation Nr: 21012617 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 11-33 062 DATE: March 4, 2021 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) on an extraschedular basis is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDING OF FACT Prior to his death, the Veteran’s service-connected disabilities prevented him from obtaining and maintaining substantially gainful employment consistent with his education and occupational background. CONCLUSION OF LAW The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from November 1975 to August 1981. He died in December 2015, during the pendency of this appeal. The Veteran’s surviving son has been properly substituted in this appeal. 38 C.F.R. § 3.1010. This appeal has been before the Board on several prior occasions. Most recently in December 2019, the appeal was remanded to refer the appeal to the VA’s Director of Compensation and Pension Services for extraschedular consideration. The Board finds there has been substantial compliance with its prior remand directives and will proceed to adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a TDI) on an extraschedular basis Prior to his death, the Veteran asserted that his service-connected disabilities precluded him from finding gainful employment. VA will grant TDIU when the evidence shows that the 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. A total rating for compensation purposes 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 at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For purposes of one 60 percent disability or one 40 percent disability in combination, disabilities of a common etiology or from a single accident are considered to be one disability. Id. For VA purposes, the term “unemployability” is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The word “substantially” suggests an intent to impart flexibility into a determination of overall employability, as opposed to requiring the appellant to prove that he is 100 percent unemployable. Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). For a Veteran to prevail on a claim for a TDIU, the record must reflect some factor which takes the case outside the norm. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). The central inquiry in a claim for TDIU 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose, 4 Vet. App. at 363. The determination of whether a veteran is employable is a legal determination, rather than a medical determination. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) Marginal employment is not considered to be substantially gainful employment. Marginal employment generally shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. § 4.16 (a). During his lifetime, the Veteran was service-connected for depression rated as 30 percent disabling; left mandibular condyle fracture residuals with co-contracture and bruxism, 20 percent; tinnitus, 10 percent; traumatic brain injury, 10 percent; tension headaches, 10 percent; bilateral hearing, noncompensable, and; allergic rhinitis, s noncompensable. The Veteran’s combined disability rating was 50 percent from February 2011 and 60 percent from May 2014. Thus, the Veteran does not currently meet the schedular criteria for TDIU. Id. In the Veteran’s August 2015 application for TDIU he reported that he completed high school and was a driver for a produce company for 6 years. The Veteran reported that he left this job due to his disability and did not report any employment since 1989. He identified his traumatic brain injury, hearing loss, and limited motion as reasons for leaving his previous job. Notwithstanding the above listed schedular criteria, a veteran may be awarded a TDIU on an extraschedular basis if he is nonetheless unemployable on account of his service-connected disabilities. The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Subsequent to the Board’s December 2019 remand, in August 2020 the Agency of Original Jurisdiction (AOJ) referred the Veteran for extraschedular TDIU to the Director of Compensation and Pension Services. The Director denied entitlement to TDIU on an extraschedular basis in November 2020. In the November 2020 memorandum denying entitlement to TDIU on an extraschedular basis, the Director appeared to focus exclusively on the Veteran’s service-connected headache disability rather than the total effect of all of his service-connected disabilities. Although the Board is required to obtain the Director’s decision before awarding extraschedular TDIU benefits in the first instance, the Board is not bound by the Director’s decision or otherwise limited in its scope of review that determination. Wages v. McDonald, 27 Vet. App. 233 (2015). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16 (b). The Board finds that a balance of the evidence reflects that the Veteran was unemployable due to his service-connected disabilities. A letter from Dr. J.N., M.D. dated January 2011 stated that the Veteran would “rather be working, but is limited by his pain conditions and by his education and training (which has been nil for sedentary jobs).” The letter also stated, “I believe his primary disability is pain (low back, upper back, neck, jaw, migraines), but the pain is starting to cause him a secondary disability of depression.” In a February 2011 Statement in Support of Claim, the Veteran stated that his service-connected disabilities affect his activities of daily living because he is unable to smile, eat, drink, or talk properly due to missing teeth and that his appearance makes it difficult to get job interviews. A July 2013 counseling record narrative report noted that the Veteran then had a combined disability rating of 50 percent for service-connected disabilities and noted that the following non-service-connected disabilities also contributed to his disability: lumbosacral strain, right ankle condition, neck condition, bilateral hearing loss (now service-connected), chest contusion, traumatic brain injury (now service-connected), migraines (headache condition is now service-connected), substance abuse (in remission), and chronic/severe adult periodontics disease. The report also states that the Veteran’s service-connected disabilities limit his capacity for work activities that require social/psychological capacities such as forming close interdependent relationships with coworkers and cognitive capacities such as occupations that place great emphasis on attention to detail. The following circumstances were identified to contribute to significant impairment: record of or current neuropsychiatric conditions, alcohol/substance abuse, severity of disabling condition, negative attitudes towards the disabled, unstable work history, chronic pain, long or substantial periods of unemployment, withdrawal from society, extent and complexity of needed rehabilitation services, lack of education/training for suitable employment, and a pattern of reliance of government support programs. A preliminary independent living assessment completed in January 2014 noted that the Veteran has some difficulty with memory and concentration due to head trauma and depression. The assessment also listed difficulty in many other areas but attributed the difficulty in these areas to the Veteran’s back pain, which is not one of the service-connected disabilities. A February 2015 VA treatment record states, “patient is very hard of hearing even [with] hearing aids in.” A VA retrospective medical opinion regarding the severity of the Veteran’s headaches was obtained in September 2019. The opinion provider stated that the Veteran complained of pulsing/throbbing headaches four to five times per week, last less than a day with occasional photophobia and sonophobia; there was no mention or record of prostrating attacks. The examiner did not address any related functional impact or occupational impairment. A VA retrospective medical opinion regarding the severity of the Veteran’s jaw disability was obtained in June 2018. The opinion provider stated that the Veteran’s jaw condition resulted in moderate disability due to limited range of motion and pain. The opinion provider stated the Veteran retained the ability to open his mouth and eat as his range of motion remained in normal range. Additionally, the opinion provider stated that the Veteran’s bruxism was moderate to severe and that myofascial pain was caused by his inability to control his parafunctional habits. The opinion provider also stated that dental neglect contributed to his difficulty in chewing and eating due to loss of teeth due to decay. A VA retrospective medical opinion regarding the functional impact of the Veteran’s allergic rhinitis was obtained in May 2018. The opinion provider concluded that there is no evidence of functional impairment or treatment of allergic rhinitis during the appeal period. A VA retrospective medical opinion regarding the functional impact of the Veteran’s depression was obtained in May 2018. The opinion provider concluded that the Veteran likely experienced occupational and social impairment with reduced reliability and productivity due (solely) to his depression during the appeal period. A VA retrospective medical opinion regarding the functional impact of the Veteran’s hearing loss and tinnitus was obtained in May 2018. The opinion provider concluded that the Veteran was able to communicate with the assistance of amplification and that his hearing loss and tinnitus would not interfere with ability to obtain or maintain employment. Resolving reasonable doubt in favor of the appellant, the Board finds that the evidence of record is in equipoise that the Veteran was unemployable due to his service-connected disabilities. The competent and credible evidence of record is in relative equipoise that the Veteran’s depression caused occupational and social impairment with reduced reliability and productivity, that his headaches occurred 4-5 times per week and produced sensitivity to light and noise, that he experienced pain, including myofascial pain, due to his jaw disability, and that he experienced difficulty hearing even while using hearing aids. The Veteran’s only employment history was driving for a produce company. He has not been employed since 1989. He has a high school education and no vocational training. The evidence reflects that the Veteran had an employment history that required the ability to drive a commercial vehicle. He had never worked in a sedentary employment environment, nor did he exhibit the skills to do so. His reduced reliability and productivity, frequent headaches and accompanying sensitivity to light and sound, pain, and difficulty hearing rendered it impossible for the Veteran to return to his prior employment as a commercial driver. The above discussion reflects that the evidence is at least in equipoise as to whether the Veteran’s service-connected depression, headaches, bilateral hearing loss, tinnitus, and jaw disability precluded him from obtaining or maintaining substantially gainful during the period on appeal. Thus, considering the benefit of the doubt, the Board finds that entitlement to an extraschedular TDIU is granted for the period on appeal. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.16 (b). M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.D. Collins, 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.