Citation Nr: 21013176 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 18-49 133 DATE: March 8, 2021 ORDER Entitlement to a grant of total disability rating for individual unemployability (TDIU) due to service-connected prior to July 29, 2016 to include on an extra-schedular basis is granted. FINDING OF FACT The Veteran’s service-connected disabilities have prevented him from securing or following a substantially gainful occupation prior to July 29, 2016. CONCLUSION OF LAW The criteria for entitlement to a TDIU prior to July 29, 2016 are met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16(b) (2020). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1963 to May 1972. This matter was previously remanded by the Board of Veterans Appeals (BVA) in May 2020 and November 2020 for additional development. It now returns for further appellate review. 1. Entitlement to a grant of TDIU prior to July 29, 2016 to include on an extra-schedular basis The Veteran contends he has been unable to secure or follow a sustainably gainful occupation due to his service-connected disabilities including his post-traumatic stress disorder (PTSD), tinnitus, back disability, and short-term memory loss. See January 2014 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability. Legal Criteria TDIU will be awarded when a veteran is unable to secure or follow a substantially gainful occupation because of a service-connected disability or disabilities.  38 C.F.R. § 4.16(a).  To qualify for a TDIU on a schedular basis, the evidence must show (1) a single disability rated as 100 percent disabling; or (2) that the disabled person is unable to secure or follow a substantially gainful occupation because of her or her service-connected disabilities, with one disability ratable at 60 percent or more, or, for more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent or more. Id. The United States Court of Appeals for the Federal Circuit stated that the ultimate question of whether a Veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); Floore v. Shinseki, 26 Vet. App. 376, 381 (2013). As such, the focus of the findings obtained on examination is not on whether the Veteran is unemployable due to his service-connected disabilities, but, rather the functional impairment caused solely by his service-connected disabilities in concert.  The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability 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 can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993).  In Ray v. Wilkie, the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. 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,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).  The noneconomic factors include the Veteran’s: work history, education, skill, and training; the Veteran’s physical ability to perform work activities; and the Veteran’s mental ability to perform work activities required by the Veteran’s occupation.  Relevant Facts and Analysis The Veteran indicated he was unable to work due to his disabilities in his original claim for service connection See August 2012 Correspondence ; September 2012 VA Form 21-526. He was granted TDIU effective July 29, 2016 in an August 2016 Decision Review Officer Rating Decision. As such, the relevant period on appeal is from August 17, 2012 to July 28, 2016. Prior to July 29, 2016, the Veteran did not meet the threshold rating requirements as his service-connected disabilities. Specifically, the Veteran’s posttraumatic stress disorder (PTSD) was rated 50 percent disability, his lumbar spine disability was rated 20 percent disability, and tinnitus was rated 10 percent disabling. The Veteran’s combined disability rating from August 17, 2012 to July 28, 2016 was 60 percent. See March 2016 Rating Decision-Codesheet. The Board is prohibited from assigning TDIU on the basis of 38 C.F.R. § 4.16(b) in the first instance without ensuring that the claim was referred to VA’s Director of Compensation Service for consideration of an extra-schedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1 (2001). However, the Veteran’s claim was forwarded to the Director of VA’s Compensation Service for extra-schedular consideration. Memorandums in December 2020 and January 2021 included in the record as to whether the Veteran is entitled to a TDIU on an extra-schedular basis. Since the Director has provided a determination as to entitlement on an extra-schedular basis, the Board now has jurisdiction to decide the issue. 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. See Wages v. McDonald, 27 Vet. App. 233, 239 (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 service-connected disabilities. See VAOPGCPREC 6-96 (1996). In a statement dated June 2014, the Veteran reported that he stopped working as a pilot manager in April 2011. See July 2014 VA Form 21-4138, Statement in Support of Claim. Specifically, he asserted that that he “had trouble walking and standing for any long period of time (5 minutes). I also discovered I was unable to concentrate and had developed short term memory loss.” Id. The Veteran further noted he had difficulty lifting due to his back disability and that his tinnitus resulted in an inability to “understand anyone in an environment where there are several people talking or music in the background.” Id. The Veteran’s October 2013 VA examination reports all reflect that the Veteran’s service-connected disabilities prevented the Veteran from performing the mental and physical activities necessary for work. Specifically, the October 2013 VA psychiatric examiner indicated that the Veteran’s PTSD symptoms caused clinically significant distress or impairment in social, occupation, or other important areas of functioning. See October 2013 VA Initial PSTD Disability Benefits Questionnaire (DBQ). Additionally, the October 2013 VA examiner for the Veteran’s back disability noted that the Veteran was limited in his ability to sit for 15 to 20 minutes at a time and could stand for 10 minutes at a time, and was able to sit/stand for four hours each in an eight hour work day. See October 2013 VA Back Conditions DBQ. Regarding, the Veteran’s tinnitus the October 2013 VA examiner opined that his tinnitus impacts his ability to work due to “sounds like saccades in his head all of the time.” See October 2013 VA Hearing Loss and Tinnitus DBQ. The issue of entitlement to a TDIU on an extra-scheduler basis was appropriately referred to the Director. The December 2018 VA memorandum noted the Veteran was employed as a pilot following separation from service and that his “PTSD, tinnitus, and back disability have resulted in ongoing frequency and symptomology [that] make obtaining maintaining employment in the airplane/flight field difficult.” See December 2020 VA Memorandum. After considering the evidence of record, it entitlement to a TDIU on an extra-schedular basis was recommended, effective from August 17, 2012, the date he filed an initial claim for service connection and indicated he was too disabled to work as a result of his service-connected disabilities. Id. In a January 2021 Memorandum, the Director found that the evidence of record does not establish the Veteran is unable to obtain or maintain substantially gainful occupation because the Veteran could perform sedentary work. In giving the benefit of the doubt to the Veteran, the Board finds that the Veteran has been unable to secure or maintain a substantially gainful occupation as a result of all of his service-connected disabilities. The medical evidence reflects the Veteran’s back disability limited his physical capabilities, and caused him caused him to have difficulty with pain and coping with the demands of a work environment. His tinnitus prevented him from hearing which is necessary for communicating in work environment. Finally, his PTSD resulted in memory loss, problems concentrating, and difficulty in adapting to stressful circumstances (including work or worklike setting). In combination, the Veteran’s service-connected disabilities prevented the Veteran from performing the physical and mental tasks necessary for working as a pilot or any other substantially gainful employment during the period on appeal. As such, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the evidence supports a finding of a TDIU on an extra-schedular basis. See 38 U.S.C. § 5107. Accordingly, the claim for TDIU on an extra-schedular basis prior to July 29, 2016 is granted. YVETTE R. WHITE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Lilly, Associate Attorney 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.