Citation Nr: 21013231 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 15-35 858 DATE: March 9, 2021 ORDER Entitlement to a total disability based on individual unemployability (TDIU) from May 15, 2013, is granted. FINDINGS OF FACT 1. The Veteran was awarded entitlement to a TDIU effective January 24, 2014, in a June 2015 rating decision. 2. The Veteran’s service-connected disabilities precluded him from securing or following a substantially gainful occupation from May 15, 2013, the date following his last day of full-time employment. CONCLUSION OF LAW The criteria for entitlement to a TDIU from May 15, 2013, have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16(b). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from May 1969 to May 1973 and from December 1974 to December 1976. This matter comes before the Board of Veterans’ Appeals (Board) from a June 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) that granted entitlement to a TDIU and assigned an effective date of January 24, 2014. The Veteran disagreed with the assigned effective date and perfected an appeal of that issue to the Board. In August 2016, the Veteran testified at a hearing before a Veterans Law Judge (VLJ); a transcript of that hearing is of record. By a February 2019 letter, the Veteran was advised that the VLJ who held the hearing was no longer employed at the Board. Veteran was given an opportunity to request another hearing. The letter advised him that if he did not respond within 30 days, the Board would assume that he did not want another hearing. No response was received, timely or otherwise; therefore, the Board has assumed the Veteran does not want an additional hearing. The claim of entitlement to a TDIU prior to January 24, 2014, has several times been remanded by the Board. Most recently, in November 2020, the matter was remanded for the agency of original jurisdiction (AOJ) to refer it to the Director of Compensation Service (Director) for consideration of entitlement to TDIU prior to January 24, 2014, on an extraschedular basis. The Directors’ advisory opinion was provided in January 2021, and the matter now returns to the Board for further appellate review. TDIU prior to January 24, 2014. A total disability rating for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. See 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. A veteran is eligible for a rating of TDIU if either one service-connected disability is rated at least 60 percent disabling or multiple service-connected disabilities yield a combined rating of 70 percent (with at least one of those disabilities rated 40 percent or more). 38 C.F.R. § 4.16(a). In this case, prior to January 24, 2014, the Veteran was service connected for tinnitus (10 percent), a cervical spine disability (10 percent from July 26, 2012, and 20 percent from September 5, 2013), bilateral hearing loss (0 percent), and residuals of a traumatic brain injury (0 percent). The Veteran’s combined evaluation for compensation was 10 percent from January 31, 2006, 20 percent from July 26, 2012, and 30 percent from September 5, 2013. Accordingly, prior to the assignment of a TDIU effective January 24, 2014, the Veteran did not meet any of the above criteria. However, where the percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). Here, the Veteran has been awarded a TDIU under 38 C.F.R. § 4.16(a), effective January 24, 2014, the date on which he met the schedular criteria for such a rating. The Board will not revisit that decision here. In its November 2020 action, the Board remanded the issue of entitlement to a TDIU prior to January 24, 2014, for the AOJ to refer that matter to the Director for a determination as to whether, prior to January 24, 2014, a TDIU was warranted on an extraschedular basis in accordance with 38 C.F.R. § 4.16(b). In January 2021, the Director denied a TDIU on an extraschedular basis. A review of that decision shows that Director considered the functional effects of the Veteran’s service-connected disabilities in effect prior to January 2014. The Director concluded that the available evidence did not support the Veteran’s contention that his service-connected disabilities alone prevented gainful employment. Specifically, the Director determined that a TDIU was not warranted on an extraschedular basis because the totality of the evidence failed to show that the Veteran would be unemployable in all environments, including a sedentary or semi-sedentary one, due solely to his service-connected disabilities. The Board notes that although the Board may not in the first instance award a TDIU on extraschedular basis, the Board is not bound by an adverse determination by the Director regarding extraschedular entitlement to TDIU because the United States Court of Appeals for Veterans Claims (Court) has determined that the Director’s decision is in essence a decision by the AOJ and thus no different than an RO’s decision in terms of its effect on the Board’s jurisdiction and standard of review. See Wages v. McDonald, 27 Vet. App. 233, 236-37 (2015). Accordingly, the Board must now determine whether the evidence supports a finding that the Veteran is entitled to a TDIU under 38 C.F.R. § 4.16(b). In reaching such a determination, 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). In arriving at a conclusion, consideration may be given to a veteran’s level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In this regard, the Board notes that in Ray v. Wilkie the Court recently interpreted the meaning of being “unable to secure and follow substantially gainful employment.” 31 Vet. App. 58, 73 (2019). Specifically, the Court stated: [W]e interpret the phrase “unable to secure and follow a substantially gainful occupation” in [38 C.F.R.] § 4.16(b) to have two components: one economic and one noneconomic. The economic component simply 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. As for the noneconomic component, the Secretary himself states that ‘determining eligibility for TDIU requires more than determining the presence or absence of employment producing income exceeding any particular threshold,’ and ‘the ultimate inquiry is instead on the individual claimant’s ability to secure or follow that type of employment’. Id. As regards the noneconomic component, attention must be given to: (a) the veteran’s history, education, skill and training, (b) the veteran’s physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy or very heavy) required by the occupation at issue, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the Veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray, 31 Vet. App. at 73. As “sedentary” is defined as “[r]equiring or marked by much sitting ” the Board finds that sedentary employment is a job where the worker primarily sits down. WEBSTER’S II NEW COLLEGE DICTIONARY 999 (1999). Evidence relevant to determining whether a TDIU is warranted on an extra-schedular basis includes military personnel records reflecting that the Veteran’s military occupation specialty in the United States Navy was that of a Boiler Technician, known today as a Machinist’s Mate, which the Board notes is a physical specialty involving the inspection, maintenance, and repair of a ships propulsion system. There is no indication of any in-service supervisory role. On his application for unemployability in February 2014, he reported that he retired as an automobile repairman due to his TBI residuals and cervical spine disability, and that he last worked full-time on May 14, 2013. The Veteran also reported completing high school with a General Education Development (GED) diploma, with no other education or training. Turning to the medical evidence, with respect to the Veteran’s hearing loss, a VA examiner in September 2012 opined that it would affect the Veteran’s ability to work, noting that he complained of trouble hearing people speaking in groups, in background noise, and the television if he was not facing it. Additionally, his tinnitus was noted to be “aggravating.” As to the cervical spine disability, the Veteran reported pain with motion of the neck upon VA examination in September 2012. While the VA examiner stated that the cervical spine disability did not affect the Veteran’s ability to work as he was still employed full time as of the date of that examination, a subsequent examination report in September 2013 noted the that the cervical spine disability did impact the Veteran’s ability to work due to loss of motion and pain. Additionally, at a February 2014 Decision Review Officer hearing, the Veteran testified that he could was no longer able to work due to the lifting, pushing, and pulling required. Further, the record also contains records from the Social Security Administration (SSA), including a December 2013 benefits assessment where the Veteran reported working as an autobody repairman for 40 years. He explained that he experienced difficulty lifting, getting up and down, and laying in tight places at work due to his cervical spine disability. A May 2014 SSA determination notes that the Veteran met the medial requirement for SSA disability benefits since his last date of employment on May 14, 2013 due, in part, on his cervical spine disability. Regarding the Director’s opinion, although the Director opined that the Veteran could work in a sedentary occupation, the Board points out that the Veteran has no employment or training conducive to sedentary work, and has spent his career in automotive repair, a primarily physical occupation. The Director’s opinion also fails to discuss his award of SSA benefits due, in part, to his cervical spine disability. While SSA determinations are not binding on the Board, SSA records are nevertheless pertinent. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). (Continued on the next page)   Overall, given the Veteran’s lack of an education beyond a GED, his primary employment in physical labor, and no indication of any supervisory, administrative, or computer skills, the Board finds it unlikely that sedentary employment (i.e., a desk job) could have been likely for this Veteran during the relatively short period between his last day of employment in May 2013 and his award of a TDIU effective January 2014. Therefore, the Board finds the evidence is at least in equipoise as to whether his service-connected disabilities rendered him unable to secure or follow a substantially gainful occupation during this period. Accordingly, the Board resolves reasonable doubt in favor of the Veteran and awards entitlement to TDIU on an extraschedular basis from May 15, 2013, the date following his last day of full-time employment. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. KRISTIN E. NEILSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Scarduzio, 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.