Citation Nr: 21014381 Decision Date: 03/12/21 Archive Date: 03/12/21 DOCKET NO. 15-42 692A DATE: March 12, 2021 ORDER A total rating based on individual unemployability (TDIU) on an extraschedular basis (38 C.F.R. § 4.16(b)) effective June 9, 1992 until April 29, 2015 is granted. FINDING OF FACT From June 9, 1992 onward, the Veteran’s service-connected disability rendered him unable to secure or follow substantially gainful employment. CONCLUSION OF LAW From June 9, 1992 until April 29, 2015, the criteria for an award of TDIU on an extraschedular basis are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.15, 4.16(b). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from July 1958 to July 1962. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge (VLJ) at a Board hearing in March 2018; a transcript is of record. This matter was last before the Board in September 2020, when it was remanded for the Director, Compensation Service, to consider extraschedular TDIU per 38 C.F.R. § 4.16(b). This matter has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D’Aries v. Peake, 22 Vet. App. 97, 105(2008). VA obtain a decision from the Director, Compensation Service regarding TDI prior to April 29, 2015. Entitlement to a TDIU prior to April 29, 2015. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). In determining unemployability for VA purposes, consideration may be given to the veteran’s level of education, special training, and previous work experience, but not to age or any impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). The sole fact that a veteran is unemployed or has difficulty securing employment is not enough, as a high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The 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. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). The United States Court of Appeals for Veterans Claims (Court) has held that the term unable to secure and follow a substantially gainful occupation in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates 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. Second, there is a non-economic component dealing with the individual veteran’s ability to follow and secure employment. For the second 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 v. Wilkie, 31 Vet. App. 58, 72-73 (2019). The Court has stated that “a veteran can establish marginal employment either by demonstrating an income less than the poverty threshold established by the U.S. Census Bureau or by the facts of his particular case.” Ortiz-Valles v. McDonald, 28 Vet. App. 6, 71 (2016) (emphasis in original). Regardless of the method, “if the evidence or facts reflect that a veteran is capable only of marginal employment, he [or she] is incapable of securing or following a substantially gainful occupation and is therefore entitled to [TDIU] if his service-connected disabilities are the cause of that incapability.” Id. In making a determination, the Board must consider all the evidence of record and make appropriate determinations of competence, credibility, and weight. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). When there is an approximate balance of positive and negative evidence regarding any material issue, all reasonable doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Board will address the Veteran’s entitlement to an extraschedular TDIU prior to April 29, 2015 (the date he currently receives TDIU). The Veteran has received a 20 percent rating for his left shoulder degenerative joint disease since June 9, 1992. He has other service-connected disabilities from September 24, 2012 onward. He did not meet the schedular criteria for TDIU prior to April 29, 2015. Nevertheless, the Veteran may be entitled to a TDIU on an extraschedular basis if it is established that he is unable to secure or follow substantially gainful employment as a result of the effect of his service-connected disabilities. 38 C.F.R. § 4.16(b). Therefore, if the schedular percentage threshold criteria are not met, but there is evidence of unemployability due to service-connected disabilities, the case must be submitted to the Director, Compensation Service, for extraschedular consideration of a TDIU. 38 C.F.R. § 4.16(b). Neither the RO nor the Board may assign an extraschedular TDIU in the first instance. Bowling v. Principi, 15 Vet. App. 1, 10 (2001). As the Veteran did not meet the schedular percentage threshold for the entire period that the Veteran claims TDIU, the Board referred his TDIU claim to the Director, Compensation Service, for extraschedular consideration in its September 2020 remand. A December 2020 review recommended against entitlement to an extraschedular TDIU. A January 2021 Advisory Opinion determined that entitlement to an extraschedular TDIU prior to April 29, 2015 was not warranted. The Director concluded that the Veteran’s service-connected left shoulder disability did not show that he would be unable to work in other suitable positions. However, the Director’s initial determination as to an extraschedular evaluation is not evidence. Wages v. McDonald, 26 Vet. App. 233, 239 (2015). Consequently, the Board must determine whether the Veteran’s service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment (work that is more than marginal, which permits the individual to earn a “living wage”). Moore v. Derwinski, 1 Vet. App. 356 (1991). The Veteran’s VA Form 21-8940 shows he last worked full-time in 1990 as a doorman for approximately 10 years. He has some college education. The claims file also indicates that the Veteran had experience as a police officer and that he performed some electrical work. His medical treatment records show that the Veteran believed he was only able to use his left arm to accomplish 37 percent of what he normally could perform. He also had decreased range of motion where he would have difficulty grooming and dressing. He had a history of shoulder dislocations in dating back to the early 1990s. He testified at a Board hearing in March 2018. He explained that it was difficult to raise his arm, comb his hair, and perform twisting motions. He could not raise his arm to shoulder level, and could not pick up his grandson or put on a coat, and brushing his teeth was difficult. The Veteran used to volunteer at his community church; however, he did not do so any longer because he did not have the physical strength. His son submitted a statement regarding the Veteran’s last employment after the March 2018 hearing. He explained that the Veteran could not maintain his position as a doorman because of the difficulty he had with opening doors, performing simple physical activities, and assisting residents with packages. In this case, the record reflects that the Veteran suffered from service-connected disabilities, which hindered his ability to maintain gainful employment prior to April 29, 2015. The Board finds that entitlement to TDIU on an extraschedular basis per 38 C.F.R. § 4.16(b) is warranted from June 9, 1992 until April 29, 2015 (date of entitlement to schedular TDIU). Due to the Veteran’s service-connected left shoulder disability, he was prevented from maintaining any physical employment as he was unable to lift, grip, or perform overhead motions. He also has difficulty performing activities of daily living, such as grooming. The Board acknowledges the Director’s finding that the Veteran would be able to perform sedentary employment. However, there is no indication from the claims file that the Veteran has any experience in a sedentary position. While he has some college education, his major employment after service was as a police officer, some time as an electrician, and as a doorman. All of these positions require the full use of both arms. As such, when resolving reasonable doubt in favor of the Veteran, entitlement to an extraschedular TDIU is granted from June 9, 1992 until April 29, 2015 (the date of entitlement to schedular TDIU). 38 U.S.C. § 5107(b).   Additionally, the Board acknowledges that the Veteran has been unemployed since 1990. However, the earliest the Veteran has been service connected for his left shoulder disability (or any disability) is June 9, 1992. As such, the earliest date for TDIU (extraschedular) is June 9, 1992. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Morales, Associate 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.