Citation Nr: 21013697 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 15-11 720 DATE: March 10, 2021 ORDER Entitlement to an extraschedular total disability rating due to individual unemployability (TDIU) prior to July 2, 2012 is granted. FINDING OF FACT For the period prior to July 2, 2012, it is as likely as not that the Veteran was unable to secure or follow substantially gainful employment as a result of his service-connected disabilities. CONCLUSION OF LAW With resolution of reasonable doubt in the Veteran’s favor, the criteria for entitlement to a TDIU on an extraschedular basis prior to July 2, 2012 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1965 to January 1969. The Board of Veterans’ Appeals (Board) remanded this matter for additional development in July 2018, February 2019, and May 2020, to include referral of the issue of entitlement to a TDIU prior to July 2, 2012 on an extraschedular basis to the Director of Compensation Service (Director). In January 2021, the Director denied entitlement to a TDIU on an extraschedular basis prior to July 2, 2012. The case has been returned to the Board for appellate review. Entitlement to an extraschedular TDIU prior to July 2, 2012 The Veteran is seeking entitlement to an extraschedular TDIU due to his service-connected disabilities. A total disability rating 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 the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by any nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16 (a). If the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, a grant of TDIU may still be granted on an extraschedular basis in cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disability. 38 C.F.R. § 4.16 (b). To prevail on an extra-schedular basis, the record must reflect some factor that takes the case outside the norm. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A disability rating is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a Veteran is capable of performing the physical and mental acts required by employment, not whether one can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The determination as to whether a veteran can secure or follow a substantially gainful occupation includes an economic component and a noneconomic component. The economic component means that a veteran must not receive income from employment that exceeds the poverty threshold for one person. The noneconomic employment requires consideration of a number of factors, including the frequency and duration of periods of incapacity or time lost from work due to disability, the veteran’s employment history and current employment status, and the veteran’s annual income from employment, if any. See Ray v. Wilkie, 31 Vet. App. 58 (2019). Here, for the period prior to July 2, 2012, the Veteran did not meet the objective criteria under 38 C.F.R. § 4.16(a) for consideration of TDIU. As previously mentioned, the Board remanded this matter in May 2020 for referral to the Director. In January 2021, the Director considered and denied the issue of entitlement to a TDIU on an extraschedular basis. Thus, the Board may now review the claim on an extraschedular basis. The Veteran last worked in 2010, and the evidence shows that he does not receive income from employment exceeding the federal poverty threshold. Thus, the economic component of an extraschedular TDIU is met. Regarding the noneconomic component, the Veteran’s military occupational specialty (MOS) was Safety Specialist. See DD 214. The Veteran reported that he has a high school education and one year of college without further training and he was self-employed as a Machinist following his military service. See January 2012 VA Form 21-8940. At the June 2010 VA examination, the Veteran reported flare-ups of his service-connected right hip as often as 5 times per day lasting for 2 hours. The flare-ups are precipitated by physical activity. The functional impact was described as pain and limitation of motion of the joint which is described as bending and stiffness. The overall functional impairment was described as difficulty and an inability to do daily activities during flare-ups. Regarding the Veteran’s service-connected shoulder disability, the Veteran reported flare-ups as often as 4 times per day and each time lasting for a half an hour. The flare-ups are precipitated by physical activity. The functional impairment was described as pain, weakness, and limitation of motion of the joint which is described as limited mobility. Overall functional impairment was described as difficulty lifting or grasping objects. Under the circumstances and in light of the totality of the record, the Board finds that the Veteran’s service-connected disabilities as likely as not precluded him from securing or following a substantially gainful occupation prior to July 2, 2012. The question before the Board is whether his service-connected disabilities alone would preclude employment, and the inability to tolerate prolonged standing and walking due to his right hip and difficulty lifting due to his shoulders, precludes work in the labor fields in which the Veteran has experience. The Board acknowledges that in January 2021, the Director determined that the Veteran was not entitled to an extraschedular TDIU, finding that overall evidence fails to support the contention that any of his service-connected disabilities or a combination of the effects of those disabilities prevents employment prior to July 2, 2012. However, the Board disagrees with this conclusion. The Veteran’s work experience and history demonstrate jobs that require physical labor, jobs that are not sedentary and involve a substantial amount of standing, walking, and use of his right hip and shoulder. Moreover, while the Director denied the claim, it was also noted that the June 2010 examiner stated that the Veteran’s right hip and shoulder impacted his ability to work by limiting his physical activity. Additionally, while it is not binding on the Board, the Board notes that the VA Appeals Resource Center recommended the award of an extraschedular TDIU based on the limitations arising from the Veteran’s service-connected right hip and right shoulder disabilities, finding that the totality of the evidence suggests that the Veteran is rendered unable to secure or follow a substantially gainful occupation prior to July 2, 2012. See November 2020 VA Memorandum. Here, the evidence shows that it is as likely as not that the Veteran’s service-connected disabilities, specifically his right hip and right shoulder disabilities, alone precluded him from securing or following a substantially gainful occupation given his occupational experience and education. The VA examiner who examined the Veteran’s right hip and right shoulder noted the functional impact that the Veteran’s hip and shoulder have on his ability to perform daily tasks. Moreover, the Veteran’s work experience is not readily applicable to a sedentary occupation based on the ordinary meaning of the term. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018). In any event, the ultimate determination as to entitlement to a TDIU is made by VA adjudicators, rather than medical examiners. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Here, with resolution of reasonable doubt in the Veteran’s favor, an extraschedular TDIU is warranted prior to July 2, 2012. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Frazier, 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.