Citation Nr: 21012717 Decision Date: 03/05/21 Archive Date: 03/05/21 DOCKET NO. 14-34 313 DATE: March 5, 2021 ORDER Entitlement to a total disability evaluation based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. In a November 2020 decision, the Director of Compensation Service denied entitlement to a TDIU on an extraschedular basis. 2. The Veteran's service-connected disabilities including his post traumatic-stress disorder (PTSD) and coronary artery disease prevent him from securing or following a substantially gainful occupation considering his education and occupational experience. CONCLUSION OF LAW The criteria for a TDIU have been met on an extra-schedular basis. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served as a member of the United States Army, with active duty service from May 1967 through January 1969. This matter has previously been before the Board. In March 2020, the Board remanded the issue of TDIU for further development and referral to the Director of the Compensation Service for consideration on an extra-schedular basis. In a November 2020 Memorandum, the Director Compensation Service, denied the Veteran's claim of entitlement to extraschedular TDIU benefits. The appeal has been returned to the Board for appellate review. 1. Entitlement to a total disability evaluation based on individual unemployability (TDIU) on an extra-schedular basis The Veteran claims that he is unable to work due to his service-connected disabilities. For the reasons set forth below, the Board agrees and finds that a TDIU on an extraschedular basis is warranted. A TDIU is warranted when the evidence shows that the Veteran is precluded from obtaining or maintaining any gainful employment, consistent with his or her education and occupational experience, by reason of his/her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be assigned where the scheduler rating is less than total, when, in the judgment of the rating agency, 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). When a Veteran does not meet the scheduler requirements for a TDIU rating under 38 C.F.R. § 4.1(a), rating boards are still required to submit to the Director of the Compensation Service for extra-scheduler 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 38 C.F.R. § 4.16(a). See 38 C.F.R. § 4.16(b). An assessment for extra-scheduler referral requires consideration of the Veteran's service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. 38 C.F.R. § 4.16(b). The Veteran's age and the effects of non-service-connected disability, however, cannot be considered. 38 C.F.R. §§ 3.341(a), 4.19. The Board cannot consider a TDIU on an extra-scheduler basis in the first instance. Instead, the Board is required to refer all cases of Veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a), to the Director for extra-scheduler consideration. 38 C.F.R. § 4.16 (b). The Board then has jurisdiction to review determinations by the Director. Wages v. McDonald, 27 Vet. App. 233 (2015). Unlike the criteria for an extra-scheduler rating under 38 C.F.R. § 3.321, the grant of an extra-scheduler rating for a TDIU under 38 C.F.R. § 4.16 is based on a subjective standard that seeks to determine if a particular Veteran is precluded from employment based on his or her service-connected disabilities. See VAOPGCPREC 6-96 (1996). The Veteran's service-connected disabilities include PTSD, rated 30 percent disabling from March 21, 2002; coronary artery disease with myocardial infraction and congestive heart failure, rated 30 percent disabling from January 13, 2017; SFW, base of left finger, palmer aspect, well healed cicatrix, rated 10 percent disabling from March 21, 2002; shell fragment wound to left hand, with decreased strength with pinch-grip pressure, rated 10 percent disabling from March 21, 2002; Tinnitus, rated 10 percent disabling from December 9, 2008; and right foot, tinea pedis and hyperkeratosis, rated as non-compensable from December 22, 2010. His combined rating is therefore 60 percent from January 13, 2017. The Veteran therefore does not meet the criteria for a TDIU on a schedular basis, as he does not have a single disability rated at 60 percent or a combined rating of 70 percent. However, because the Director has considered the Veteran's claim on an extra-schedular basis, the Board has jurisdiction to decide the issue. The Board further notes that the Director's decision is a non-binding administrative determination and does not constitute medical evidence. See Wages v. McDonald, 27 Vet. App. 233, 239 (2015). The Board finds that the evidence supports assigning a TDIU on an extra-schedular basis. With respect to his education, the Veteran reported on his October 2013 VA 21-8940 [Veterans Application for Increased Compensation Based on Unemployability] that he had received one year of high school and received no additional training. His occupational history includes having worked as a firefighter for 27 years with the Omaha Fire Department and a part-time ground crew member at the Rosenblatt Stadium. The records also reveal that the Veteran has worked as a trash compactor and a wielder. Thus, the Veteran spent much of his career working on physical or non-sedentary jobs which involves significant amount of strenuous activities with no specialized training or education in any other field. A medical opinion was sought in December 2013, regarding whether the Veteran’s service-connected disabilities would preclude him from following a substantially gainful employment. The examiner opined that the Veteran's PTSD would not render him totally incapable of obtaining or maintaining either a physical or sedentary type employment position. The examiner noted that the Veteran's PTSD would lead to intermittent periods of inability to perform occupational tasks with occasional decrease in work efficiency, but that occupations such as greeter at a sporting goods store or large retail store are within the Veteran’s capability. The examiner further noted that the Veteran would also be capable of physical labor positions such as stacking, sorting, stocking due to his PTSD only and that sedentary employment would be fine for clerical duties. See December 2013 VA Examination. On the March 2017 VA Heart Conditions examination, the examiner noted that the Veteran’s service-connected coronary artery disease would impact his ability to work as he should avoid strenuous activities. See March 2017 C&P Examination. Even though, the Director of Compensation concluded in her November 2020 decision that none of the available evidence supported the Veteran's contention that any of his service-connected disabilities or combination of the effects of the disabilities prevented all types of gainful activity, the Board disagrees. The Board accords little probative weight to the December 2013 medical opinion because the examiner did not adequately address whether in totality, the service-connected disabilities would preclude employment. Rather the examiner focused his opinion only on the service-connected PTSD. Furthermore, the examiner did not consider the Veteran’s level of education and occupational history when he concluded that sedentary employment would be fine for clerical duties. The record indicates that the Veteran only completed a year of high school and has no additional training. 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: 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 Board accords more probative weight to the March 2017 examiner who noted that the Veteran’s coronary artery disease would impact his ability to work as he should avoid strenuous activities. While the December 2013 examiner had opined that the Veteran would also be capable of physical labor positions such as stacking, sorting and stocking, this is impracticable considering the Veteran’s service-connected coronary artery disease. In addition, occupations such as greeter at a sporting goods store or large retail store could be impacted by the Veteran’s service-connected PTSD, as he has consistently reported that he avoids crowds and prefers to be alone. The Board acknowledges that although the Veteran has other non-service connected disabilities that may impact employment, the service connected PTSD combined with the Veteran's service connected coronary artery disease with myocardial infarction with congestive heart failure, tinnitus, left finger and left hand disabilities, would significantly impact and render the Veteran unable to obtain and maintain gainful employment. UAs noted previously, unlike the criteria for an extra-scheduler rating under 38 C.F.R. § 3.321, the grant of an extra-scheduler rating for a TDIU is based on a subjective standard that seeks to determine if a Veteran is precluded from employment based on his service-connected disabilities. Applying this subjective standard and taking into consideration the Veteran’s level of education and his occupational history, the Board finds that a TDIU on an extra-schedular basis is warranted. Thus, the Board concludes that the Veteran is unable to maintain gainful employment as a result of his service-connected disabilities in totality. His claim for a TDIU is therefore granted. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. M. Rogers, 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.