Citation Nr: 21012677 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 17-49 513 DATE: March 4, 2021 ORDER Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) from July 29, 2014 is granted, subject to controlling regulations governing the payment of monetary awards. FINDING OF FACT From July 29, 2014, the effective date of the grant of service connection for cervical spine degenerative joint disease, the Veteran’s service-connected cervical spine degenerative joint disease precluded all substantially gainful employment for which his education and occupational experience would otherwise have qualified him. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis from July 29, 2014 are met.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.3.40, 3.341, 3.400, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1968 to June 1970. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from an August 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) which, among other things, granted service connection for cervical spine degenerative joint disease status post fusion surgery with an initial evaluation of 20 percent, effective July 29, 2014. The Veteran timely appealed this matter. In October 2020, the Board found that the issue of entitlement to a TDIU had been raised by the evidence of record in connection with the claim for a higher initial disability rating for cervical spine disability, consistent with Rice v. Shinseki, 22 Vet. App. 446, 453 (2009) (when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, the issue of entitlement to a TDIU will be considered part and parcel of the claim for benefits for the underlying disability). However, the Veteran did not meet the schedular rating criteria under 38 C.F.R. § 4.16(a), and the Board remanded the matter for referral to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). As a final preliminary matter, the RO substantially complied with the Board's remand instructions by sending a letter to the Veteran in October 2020 asking him to complete a formal application for a TDIU (VA Form 21-8940) and to report his education and employment history and earnings. Thus, no further action is necessary in this regard. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with). As discussed further below, the Veteran never submitted a completed VA Form 21-8940, therefore, the Board must decide the case based on the evidence of record. Entitlement to a TDIU on an extraschedular basis As noted in the introduction, the Board inferred the issue of the Veteran’s entitlement to a TDIU based upon the Veteran’s contention throughout the appeal period that he retired due to his cervical spine disability. Therefore, the issue of entitlement to a TDIU has been raised as part and parcel of the claim for a higher initial disability rating for his cervical spine disability. Rice, 22 Vet. App. at 447. VA will grant a TDIU when the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. 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). The Board must evaluate whether there are circumstances in the veteran’s case, apart from any non-service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service-connected conditions. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In Ray v. Wilkie, 31 Vet. App. 58, 73 (2019), the Court defined the term “unable to secure and follow a substantially gainful occupation” as having two components: one economic and one noneconomic. The economic component means 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. The non-economic component includes consideration of the following: the veteran’s history, education, skill, and training; whether the veteran has the physical ability to perform the type of activities required by the occupation at issue; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. The regulations provide that if there is only one such disability, it must be rated at 60 percent or more, and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). A total disability rating may also be assigned on an extraschedular basis, pursuant to the procedures set forth in 38 C.F.R. § 4.16(b), for veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in section 4.16(a). TDIU is warranted under 38 C.F.R. § 4.16(b) if it is established by the evidence of record that service-connected disabilities render the veteran unable to secure and follow substantially gainful employment. Although the Board may not assign an extraschedular rating in the first instance, it may assign one on appeal of a determination by the Director of Compensation Service. The Veteran is currently in receipt of service connection for cervical spine degenerative joint disease status post fusion surgery, rated 30 percent disabling; radiculopathy of the right upper extremity, rated 20 percent disabling; tinnitus, rated 10 percent disabling; and noncompensable right ear hearing loss and surgical scar. Thus, the Veteran does not have at least one disability rated at 40 percent or more, and his combined disability rating is 50 percent from July 29, 2014. Therefore, the Veteran fails to meet the threshold rating requirements of 38 C.F.R. § 4.16(a). As noted in the introduction, the case was forwarded to the Director of Compensation in response to the Board’s October 2020 remand directive. In January 2021, the Director concluded that entitlement to a TDIU on an extraschedular basis was not warranted. The Director found that the preponderance of the evidence did not support the contention that the Veteran’s service-connected conditions, alone or in conjunction, resulted in occupational and social impairment with reduced reliability and productivity or worse. Moreover, the effects of his service-connected conditions did not prevent all forms of employment, including in a sedentary work environment. The Board may now consider the issue on the merits, de novo, with the Director’s decision being in essence the de facto decision of the Agency of Original Jurisdiction (AOJ) and, as such, not evidence. Wages v. McDonald, 27 Vet. App. 233, 238-239 (2015). For the following reasons, a TDIU on an extraschedular basis is warranted from July 29, 2014. The evidence of record shows that the Veteran was employed as an electrician for many years before his neck disability caused him to retire early. During a July 2015 VA examination, the Veteran reported that wearing a hard hat in the course of his job duties as an electrician caused him neck pain by the end of the day. He also noted it was difficult for him to look up while working, and he would have to turn his whole body to look at something because he could not turn his neck. The examiner found that the Veteran’s neck disability impacted his ability to work. The competent and credible evidence of record shows that the Veteran is not currently able to engage in substantially gainful employment due to his cervical spine disability symptoms. Specifically, the evidence of record reflects that the Veteran experiences significant impairments from his service-connected cervical spine degenerative joint disease (including pain and an inability to turn his neck) that prevent him from performing any type of employment. As discussed in the introduction, there is not a formal TDIU application form (VA Form 21-8940) of record. In this situation, a decision must be made based on the available evidence of record, as has been done above. Given that the evidence is sufficient to render a decision on this issue, a remand to attempt to determine whether the Veteran received the formal TDIU application form and did not respond or whether he did not receive the form, is unnecessary. For the foregoing reasons, the Veteran’s service-connected cervical spine degenerative joint disease rendered him unable to obtain and maintain substantially gainful employment from July 29, 2014. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (The “applicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”). Given that the issue of entitlement to a TDIU came to the Board as part and parcel of the claim for an higher initial disability rating for cervical spine degenerative joint disease, an effective date of July 29, 2014, the effective date of the grant of service connection for cervical spine degenerative joint disease, is warranted for entitlement to a TDIU on an extraschedular basis. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Styer, 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.