Citation Nr: 21014081 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 08-37 748 DATE: March 11, 2021 ORDER For the period from June 6, 2008 to June 16, 2008, entitlement to a total disability rating due to individual unemployability (TDIU) is denied. For the period from June 17, 2008, entitlement to a TDIU is granted. FINDINGS OF FACT 1. From June 6, 2008 to June 16, 2008, the Veteran’s service-connected disabilities do not preclude substantially gainful employment. 2. From June 17, 2008, the Veteran’s service-connected disabilities preclude substantially gainful employment. CONCLUSIONS OF LAW 1. From June 6, 2008 to June 16, 2008, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. 2. From June 17, 2008, the criteria for a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1999 to June 2007. In an August 2019 rating decision, a TDIU was granted, effective June 16, 2009, which was indicated to be a final decision. As detailed in the November 2017 and October 2019 Remands, however, the Veteran had claimed entitlement to a TDIU as of June 6, 2008. Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. §§ 3.340, 4.16(a). If, however, there is only one such disability, it shall be ratable at 60 percent or more, and, if there are two or more disabilities, there shall be at least one 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). Disabilities of one or both upper extremities, including the bilateral factor, will be considered as one disability. 38 C.F.R. § 4.16(a)(1). Under 38 C.F.R. § 4.16(b), all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Therefore, rating boards should submit to the Director, Compensation and Pension service, for extra-schedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). For the period from June 6, 2008 to June 15, 2009, the Veteran’s service-connected disabilities fail to meet the percentage standards set forth in § 4.16(a). VA’s policy is to award TDIU in all cases where service-connected disability precludes gainful employment regardless of the percentages awarded. 38 C.F.R. § 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance, but it can review the record and determine whether an appropriate case is to be referred to the Director of the VA Compensation Service (Director) or Undersecretary for Benefits for such extraschedular consideration. Bowling v. Principi, 15 Vet. App. 1, 8-10 (2001); see Wages v. McDonald, 27 Vet. App. 233, 236 (2015) (“On its face, the regulatory scheme created by § 4.16(b) merely withholds from rating boards the authority to grant extraschedular TDIU in the first instance.”). The Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training, and previous work experience, but not his age or to any impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether a Veteran is entitled to a total disability rating based upon individual unemployability, the Veteran’s non-service-connected disabilities and his advancing age are not for consideration. See 38 C.F.R. § 3.341(a); Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992). The Board’s task is to determine whether there are circumstances apart from the non-service-connected conditions and advancing age which would justify a total disability rating based on unemployability. In other words, the Board must determine if there are circumstances, apart from non-service-connected disabilities, that place this Veteran in a different position than other veterans. See 38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1995). 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). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). In his September 2011 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran asserted that following service he worked full time as a tire changer until June 5, 2008. 09/30/2011 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. His former employer stated that he worked full-time as a test vehicle operator from May 21 to June 16, 2008. 11/16/2012 VA 21-4192 Request for Employment Information in Connection with Claim for Disability. For the period prior to June 16, 2009, PTSD is rated 0% from June 5, 2007 to June 15, 2009; lumbar spine disability is rated 0% from June 5, 2007 to February 25, 2009, and 10% from February 26, 2009; left shoulder disability is rated 20% from June 5, 2007; right shoulder disability is rated 0% from June 5, 2007, and 10% from February 26, 2009; degenerative joint disease of the lumbar spine, bilateral shoulders, bilateral knees, left hand, and wrist are rated 10% from June 5, 2007 to February 26, 2009; right knee, degenerative joint disease 0% from June 5, 2007 to February 25, 2009, and 10% from February 26, 2009; left knee, degenerative joint disease 0% from June 5, 2007 to February 25, 2009, and 10% from February 26, 2009; left hand wrist and degenerative joint disease 0% from June 5, 2007; hypertension from June 5, 2007; and, erectile dysfunction from June 5, 2007. His combined evaluation is 30 percent from June 5, 2007; and 50 percent from February 26, 2009 to June 15, 2009. A March 2008 C&P mental health examination reflects that the Veteran was employed as a milk man from 1997 to 1998 and did fertilizer company work from 1996 to 1997. His military occupational specialty was a mechanic. It was indicated that he was seeking employment and indicated that his unemployment was by choice and not due to any psychological struggles. A March 2008 C&P joints examination reflects the Veteran’s report that he lives in a small town and there is little work. He started looking in surrounding towns and was interviewing with the local Sheriff’s department to be a deputy. He reported difficulty doing mechanical work because of problems with his shoulders, and that he has difficulty on working on projects overhead using the left arm. 03/25/2008 VA Examination at 1, 5, 9, 29, 31. A November 2018 VA examiner opined that with regard to limitations prior to June 10, 2010, the Veteran has problems grasping and holding on to things with his left hand. He had issues with typing and with fine motor skills; with regard to his shoulders he has problems reaching overhead, lifting and holding objects in front, pushing, and pulling; with regard to his wrists he has problems grasping, holding on to things, typing, and with fine motor skills; with regard to his knees, he has problems kneeling, walking, and with stairs; and, with regard to his back he has problems standing for long periods of time and bending over. In November 2020, the Director, Compensation Service, reviewed the claims folder and opined that while the Veteran has limitations caused by his service-connected disabilities, the cumulative evidence does not support that any service-connected condition, alone or in conjunction, would have precluded all forms of substantially gainful activity, including in a sedentary or semi-sedentary environment. Initially, the Board finds that a TDIU is not warranted from June 6, 2008 to June 16, 2008 as the evidence of record reflects that the Veteran was employed in a full-time capacity. Thus, his employment precludes a finding that a TDIU is warranted. For the period from June 17, 2008 to June 15, 2009, the Board finds evidentiary support to conclude that his service-connected disabilities preclude substantially gainful employment. While the Veteran’s service-connected disabilities do not meet the schedular criteria for a TDIU, based on the Veteran’s previous work experience during active service and subsequent to active service, the combined effects of the symptomatology associated with his shoulders, knees, lumbar spine, and left hand affect his ability to maintain gainful employment, as he is unable to consistently function in an industrial capacity due to his symptomatology. Thus, for the above reasons, entitlement to a TDIU is granted from June 17, 2008, which corresponds to the date of his first day of unemployment, and a TDIU is denied for the period from June 6 to June 16, 2008 due to his full-time employment. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.