Citation Nr: 21013049 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 12-31 016A DATE: March 8, 2021 ORDER Entitlement to extraschedular TDIU prior to April 4, 2013, is granted. FINDING OF FACT 1. In a November 2020 memorandum, the Director, Compensation Service determined that entitlement to TDIU on an extra-schedular basis had not been established for the time period prior to May 16, 2014. 2. Resolving all reasonable benefit of the doubt in the Veteran's favor, the evidence establishes that the Veteran became unable to obtain or maintain substantially gainful employment due to service-connected disabilities in 2009. CONCLUSION OF LAW The criteria for entitlement to a TDIU on an extraschedular basis have been met prior to April 4, 2013. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Army from October 1985 to November 1987. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a December 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida and a July 2020 Board remand. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in September 2015. 1. Entitlement to extraschedular TDIU prior to April 4, 2013, is granted. VA will grant TDIU when the evidence shows that a Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). 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). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 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). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). 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). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; VanHoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. VanHoose, 4 Vet. App. at 363. The Board notes that the previous Board remand framed the issue as a claim for TDIU on an extraschedular basis prior to May 16, 2014. The Veteran, however, is in receipt of a 100 percent combined disability evaluation and special monthly compensation for his left knee replacement from April 4, 2013 to July 1, 2014. As such, the Board will only consider TDIU prior to April 4, 2013. The Board notes that the Veteran is not qualified on a schedular basis for this claim prior to April 4, 2013. Service connection is in effect for the following disabilities: 1) a mood disorder, rated at 30 percent from May 19, 2010, and 50 percent from May 16, 2014; 2) status post left total knee replacement, rated at 10 percent from July 20, 2009, 100 percent from January 28, 2010, 10 percent from April 1, 2010, 100 percent from April 4, 2013, and 30 percent from July 1, 2014; 3) radiculopathy of the right lower extremity, rated at 20 percent from August 18, 2012; 4) lumbar spondylosis, rated at 20 percent from October 3, 2011, 20 percent from November 3, 2016, 100 percent from October 13, 2017, and 20 percent from January 1, 2018; 5) traumatic arthritis and degenerative joint disease of the right hip, rated at 10 percent from February 11, 2011; and 6) a scar status post left knee replacement, at a noncompensable rating from June 14, 2017. For the time period on appeal, the Veteran’s combined disability evaluation is 10 percent from July 20, 2009, 100 percent from January 28, 2010, 10 percent from April 1, 2010; 40 percent from May 19, 2010; 50 percent from February 11, 2011; 60 percent from October 3, 2011; 70 percent from August 18, 2012; 100 percent from April 4, 2013; 100 percent from May 16, 2014; 80 percent from July 1, 2014; 100 percent from October 13, 2017; and 80 percent from January 1, 2018. 38 C.F.R. § 4.16(a). The Board notes that according to the Veteran’s December 2017 application for increased compensation due to unemployability that the Veteran had ceased working for FedEx in June 2009 due to his left knee, radiculopathy, lumbar spondylosis, and mood disorder. In a February 2018 brief, the Veteran’s representative stated that the Veteran had excessive absences and unscheduled breaks at work due to his service-connected disabilities. The Veteran decided to resign from his job at FedEx to avoid termination. October 2011 VA records noted that the Veteran had graduated high school and completed one and a half years of college. According to the August 2011 VA examination, the Veteran had three years of schooling in computer sciences and had worked previously as a cook, in parks and recreations, in a cemetery, in a warehouse, and as a materials handler at FedEx. In a November 2009 VA examination to evaluate the Veteran’s left knee condition, the examiner determined that the Veteran’s condition had significant impact on occupational abilities. The examiner noted inappropriate behavior, decreased strength in the lower extremities, and pain. In a July 2010 VA examination for mental health, the examiner stated that the Veteran’s depressive amotivation would likely reduce work performance. However, the examiner also noted that there was not occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks due to his mental health disorder. In March 2011 the Veteran was provided with a VA examination to evaluate his right hip disorder. The examiner found that the Veteran had decreased mobility and problems with lifting and carrying. The resulting work problems were the assignment of different duties, increased tardiness, and increased absenteeism. The Veteran underwent another VA examination to evaluate his mental health in August 2011. The examiner noted that the Veteran suffered from occupational and social impairment with occasional decrease in work efficiency with intermittent periods of inability to perform occupational tasks. A November 2011 VA examination evaluated the Veteran’s back condition. It was noted that the Veteran’s back condition impacted his ability to work as he would have difficulty bending, standing, and turning around. An August 2012 VA examination for the Veteran’s back condition found that the condition did not impact his ability to work as the Veteran had been unemployed since 2009. In September 2012, the Veteran was provided with VA examinations to evaluate his back and hip. The examiner determined that the Veteran’s back condition did not affect his ability to work as the Veteran had ceased working in 2009 due to his knee condition. The examiner also determined that the Veteran’s right hip condition did not impact his ability to work but provided no further explanation. April 2013 VA records noted that the Veteran was utilizing a walker. June 2013 VA records noted that the Veteran could not work because of his back pain and that he could not sit or stand for a prolonged period as was required by his occupation. A February 2018 vocational assessment report from J.C., a private rehabilitation counselor was submitted. JC reviewed the claims file and provided a review of the relevant medical evidence in the file. JC provided that it was more likely than not that the service-connected conditions had precluded the Veteran from securing and following substantially gainful employment since 2009 when he stopped working as a material handler at FedEx. JC concluded that the Veteran’s conditions rendered him unable to engage in prolonged sitting, standing, or walking, and his depression, anxiety, left knee pain, right lower extremity pain, and back pain precluded him from sustained the concentration and focus required of competitive employment. After consideration of the record, and resolving all reasonable doubt in favor of the Veteran, the Board finds that the Veteran’s service-connected disabilities prior to April 4, 2013 were sufficiently disabling as to render the Veteran unable to maintain substantially gainful employment consistent with his education and occupational background. According to the medical treatment records within the file, the Veteran was unable to perform adequately at his job due to his several service-connected disabilities. The Veteran’s work history is comprised solely of labor-intensive jobs. Prior to April 4, 2013, the Veteran had completed high school and received some education in computer sciences, but never completed this degree nor did he gain any experience working in this field. As the Veteran’s job was largely a non-sedentary role, he was unable to continue working due to the strain on his back, hip, and knee. The VA examiner from the November 2009 examination noted that the Veteran’s left knee condition would significantly impact his job performance. While the examiner from the March 2011 VA examination affirmed the Veteran’s reports that his right hip condition led to tardiness and increased absenteeism at work. The February 2018 vocational assessment also determined that the Veteran was more likely than not precluded from gainful employment since 2009 as his physical and emotional conditions would markedly interfere with job performance in the competitive job market. Therefore, even if the Veteran was placed in a sedentary position, his mental health condition would still interfere with his ability to maintain gainful employment. Therefore, viewing the evidence as a whole, the Board finds that the evidence indicates the Veteran's service-connected conditions prevented him from securing and maintaining gainful employment consistent with his educational background and employment history prior to April 4, 2013. Therefore, entitlement to extraschedular TDIU is granted for this period. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Ashley Ki 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.