Citation Nr: 21012991 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 09-00 135 DATE: March 8, 2021 ORDER Entitlement to a total disability due to individual unemployability (TDIU) due to service-connected disabilities beginning August 1, 2009, is granted. FINDING OF FACT Beginning August 1, 2009, the Veteran’s service-connected disabilities did preclude him from obtaining or following substantially gainful employment. CONCLUSION OF LAW Beginning August 1, 2009, a TDIU due to the Veteran’s service-connected disabilities is warranted. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Army from May 1986 to May 1989 and from November 2004 to September 2006. In February 2017, the Board remanded the case so that the Veteran could be afforded a hearing before a Veterans Law Judge. In November 2017, he testified before the undersigned at a Board hearing held via videoconference. A transcript of that hearing is of record. The Veteran’s appeal was previously before the Board in August 2020 but was remanded to the Agency of Original Jurisdiction (AOJ) for further development. Specifically, the AOJ was required to obtain a letter from the Director of Compensation Services for extra-schedular consideration of entitlement to TDIU prior to June 30, 2019. The required letter from the Director of Compensation Services was obtained and associated with the claims file in November 2020. Accordingly, the Board finds there has been substantial compliance with the remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D’Aries v. Peake, 22 Vet. App. 97, 105 (2008). Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a TDIU due to service-connected disabilities, prior to June 30, 2019 Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected 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). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). Prior to June 30, 2019, the Veteran was service connected for lumbosacral strain (rated at 20 percent), cubital tunnel syndrome (rated at 30 percent), radiculopathy of the right lower extremity (rated at 20 percent), patella femoral syndrome status post torn anterior cruciate ligament right knee (rated at 10 percent), status post dislocated elbow with posttraumatic arthritis (rated at 10 percent), for a combined disability rating of 60 percent. Prior to June 30, 2019, the Veteran does not meet the schedular criteria for a TDIU. See 38 C.F.R. § 4.16(a). However, TDIU may also be considered on an extraschedular basis. If a veteran does not meet the applicable percentage standards set forth in 38 C.F.R. § 4.16(a), the issue of entitlement to a TDIU may be submitted to the Director of the Compensation Service for extraschedular consideration where the Veteran is unable to secure or follow a substantially gainful occupation by reason of service-connected disability. 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). An extraschedular rating is requested by the RO and approved by the Director of the Compensation Service. 38C.F.R. §4.16(b). In a November 2017 hearing before the undersigned Veterans Law Judge, the Veteran presented credible testimony regarding how his service-connected disabilities have prevented him from being able to obtain or follow substantially gainful employment. The Veteran testified that his service-connected lumbosacral strain has impaired his ability to sit for prolonged periods of time, that his service-connected right knee disability resulted in instability and aggravation to his back disability requiring the Veteran to miss work, and that his service-connected right forearm disability resulted in an inability to perform some mechanical functions such as turning wrenches in his employment as a heavy equipment mechanic. In its remand, the Board noted that, “…the evidence suggests that the Veteran’s service-connected disability may have impaired his ability to work,” (emphasis added) and remanded the claim for the Director of the Compensation Service to consider an extraschedular TDIU in the first instance. In November 2020, the Director of the Compensation Service issued an advisory opinion regarding the Veteran’s claim for TDIU prior to June 30, 2019. The opinion stated: A review of the file shows the Veteran last worked in April 2009 doing heavy equipment repair for National Guard equipment. When he retired from the National Guard, he was no longer eligible to work there. Medical evidence suggest that the Veteran was promoted to an office job in 2008 but endorsed problems with prolonged sitting. He was not found disabled by the Social Security Administration. The Veteran’s service-connected conditions were found to cause decreased mobility, problems with squatting, prolonged standing, lifting and carrying which resulted in increased absenteeism. Although it is conceded that the Veteran’s service-connected conditions do cause functional limitations, the preponderance of the evidence does not show that the Veteran is unable to obtain or maintain gainful employment due to his service-connected conditions. Because the Director of C&P adjudicated this question, the Board is now permitted to exercise jurisdiction over this issue. Wages v. McDonald, 27 Vet. App. 233 (2015). The Board notes that it does so while placing no weight on the findings of the Director of Compensation Service, as that is a non-binding administrative determination and does not constitute medical evidence. Id. In Ray v. Wilkie, 31 Vet. App. 58 (2019), the U. S. Court of Appeals for Veterans Claims (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. As the Veteran has been unemployed since April 2009, the noneconomic component of “unable to secure and follow a substantially gainful occupation” must be addressed. In a November 2017 hearing, the Veteran testified that the vast majority of his work history has been in occupations that required increased physicality. Prior to the Veteran’s final day of employment in April 2009, the Veteran worked as a heavy equipment technician, a parts and equipment associate, and a retail store associate. The Veteran testified that his service-connected lumbar spine disability and associated radiculopathy prevented him from being able to complete his duties as a heavy equipment technician. The Veteran testified he was unable to perform the necessary lifting and bending required for working on heavy equipment engines. He stated that while employed as a heavy equipment technician he would often have to take off days to treat his back disability, and regularly needed to lay down at work to elevate his legs to provide his back disability some relief. The Veteran testified that his service-connected dominant right hand and forearm disability resulted in decreased muscle strength that prevented him from being able to turn wrenches to loosen bolts. The Veteran’s right hand and forearm disability also prevented him from being able to access parts of equipment necessary for repair. The Veteran stated that he worked as a heavy equipment technician for 15 years before having to leave the position because of his service-connected disabilities. The Veteran has remained unemployed since leaving this position. The Veteran further testified that prior to his employment as a heavy equipment technician, he worked as a parts and equipment associate at an auto dealership. The Veteran reported that he had difficulty with the prolonged standing and walking required in the position, often times needing to take increased medication to complete his work shift. Finally, the Veteran testified that his service-connected lumbar spine disability and associated radiculopathy of the right lower extremity prevent him from being able to drive long distances. The Veteran’s August 2015 Application for Increased Compensation Based on Unemployability notes only year of college education, without graduation. The Veteran does not have any additional training or education that would help him secure employment in other fields. As noted in the findings of the Director of the Compensation Service, “the Veteran’s service-connected conditions were found to cause decreased mobility, problems with squatting, prolonged standing, lifting and carrying which resulted in increased absenteeism.” Based on the evidence of record, the Board finds that the Veteran’s employment history, training, and education make it highly unlikely that prior to June 30, 2019, he would have been able to obtain substantially gainful employment in any occupation that did not require increased physicality. Further, the Board finds that prior to June 30, 2019, the Veteran’s service-connected disabilities, to include his service-connected lumbar spine disability, radiculopathy of the right lower extremity, and dominant right hand and forearm disability prevented the Veteran from being able to secure or follow substantially gainful employment in any field requiring increased physicality. Based on the probative evidence of record, the Board finds that it is at least as likely as not that the Veteran’s service-connected disabilities precluded him from being able to obtain or follow substantially gainful employment from August 1, 2009, the first day of the month after the Veteran stopped working. In his August 2015 VA Form 21-8940, the Veteran reported last working in April 2009. However, in a more contemporaneous July 2, 2009 VA treatment record, he reported that he was working as a technician with the National Guard. The VA treatment record, which was closer in time to when the Veteran stated he stopped working, is more probative than the VA Form 21-8940. Human memory is fallible and a more contemporaneous record is more probative for that reason. Accordingly, entitlement to TDIU beginning August 1, 2009, is warranted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Riordan, 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.