Citation Nr: 21014600 Decision Date: 03/15/21 Archive Date: 03/15/21 DOCKET NO. 13-29 796 DATE: March 15, 2021 ORDER A total disability rating based upon individual unemployability (TDIU) prior to December 21, 2012, on an extraschedular basis, is granted FINDING OF FACT The competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment as of June 19, 2010, and prior to December 21, 2012. CONCLUSION OF LAW The criteria for TDIU are met as of June 19, 2010, and prior to December 21, 2012. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16(b), 4.18, 4.19, 4.25. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1989 to December 1996, and from September 2002 to July 2003, as well as additional service in Arkansas National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This case was last before the Board in September 2020, at which time it was remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. The Director provided such a decision in December 2020. As such, the requested directives have been substantially complied with and the matter has been properly returned to the Board for appellate consideration. Entitlement to TDIU prior to December 21, 2012, on an extraschedular basis. The issue before the Board is whether TDIU was reasonably raised by the record prior to December 21, 2012, and whether the Veteran’s service-connected disabilities precluded him from securing or following substantially gainful employment. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. VA guidance has defined a substantially gainful occupation as “employment at which non-disabled individuals earn their livelihood with earnings comparable to the particular occupation in the community where the Veteran resides.” It also has been defined as “an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that the Veteran actually works and without regard to the Veteran’s earned annual income.” Faust v. West, 13 Vet. App. 342, 355-356 (2000). Marginal employment shall not be considered substantially gainful employment. Substantially gainful employment is defined as work that is more than marginal, which permits the individual to earn a “living wage.” Id. Marginal employment is defined as an amount of earned annual income that does not exceed the poverty threshold determined by the Census Bureau. 38 C.F.R. § 4.16(a). Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more such disabilities, there shall be at least one disability 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). For the purpose of one 60 percent or one 40 percent disability in combination, disabilities of one or both upper extremities, or one or both lower extremities, including the bilateral factor, if applicable, disabilities resulting from a common etiology or a single accident, or disabilities affecting a single body system will be considered as one disability. Id. Here, effective April 22, 2009, and prior to December 21, 2012, the Veteran’s service-connected disabilities included: lumbar spine spondylolisthesis with degenerative disc disease, evaluated at 20 percent disabling; left knee strain, evaluated at 10 percent disabling; and right knee strain, evaluated at 10 percent disabling. The combined evaluation was 40 percent disabling. 38 C.F.R. § 4.25. The Veteran did not have a combined rating of at least 70 percent, and the disabilities were neither resulting from a common etiology or a single accident, nor affecting a single body system. Therefore, the schedular requirements for TDIU have not been met prior to December 21, 2012. In September 2020, the Board granted TDIU on a schedular basis, effective December 21, 2012. 09/01/2020, BVA Decision. The Board is prohibited from assigning a 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 for consideration of an extraschedular rating under 38 C.F.R. § 4.16(b). Bowling v. Principi, 15 Vet. App. 1, 10 (2001). Accordingly, in September 2020, the Board remanded the claim for initial extraschedular consideration. In December 2020, the Director of Compensation Service determined that a TDIU on an extraschedular basis was not warranted. In Wages v. Shinseki, the United States Court of Appeals for Veteran’s Claims (the “Court”) held that a decision from the Director of Compensation Service “is in essence the de facto decision of the agency of original jurisdiction and, as such, is not evidence . . . It is simply a decision that is adopted by the [agency of original jurisdiction] and reviewed de novo by the Board.” 27 Vet. App. 233, 239 (2015). The Court concluded that the Board erred when it relied on the Director’s decision as evidence to deny an extraschedular total disability rating based on individual unemployability. Id. The Court added that the VA Compensation Service Director’s initial determination as to an extraschedular evaluation is not evidence. Id. After affording him the benefit of the doubt, the Board finds that the competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities prevent him from securing or following gainful employment as of June 19, 2010. In determining whether the Veteran is capable of obtaining and maintaining gainful employment due to his service-connected disabilities, the Board must consider the Veteran’s work history, education, and any special training. See Rice v. Shinseki, 22 Vet. App. at 452 (stating that entitlement to TDIU is based on an individual’s particular circumstances). The Veteran contends that his lumbar spine disability prevents him from securing or following a substantial gainful employment. The Veteran last worked on June 19, 2010, as a mechanic. At the time of his application for TDIU benefits, the Veteran completed high school and had military training. 06/30/2010, VA 21-8940 Application. Subsequently, the Veteran completed two years of college credits, but did not earn a college degree. 12/13/2013, VA 21-8940 Application; 03/01/2021, Appellate Brief. The Veteran’s work history outside of his military and civilian military technician positions consisted of work at a Tyson and a Wal-Mart distribution center. 06/30/2010, VA 21-8940 Application; 11/21/2013, C&P Exam. The Veteran also briefly obtained employment as a van driver, but the Board notes that this employment was for three days per week at $9 an hour. 12/09/2011, Education – General, page 13. However, marginal employment shall not be considered substantially gainful employment and shall be deemed to exist when a Veteran’s earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. 38 C.F.R. § 4.16(a). A January 2012 VA medical opinion notes that the Veteran is unable to lift over 20 pounds, stand for prolonged periods of time, bend, or squat. The clinician indicated that the Veteran could function in an office setting. 01/03/2012, Medical Treatment Record – Government Facility. And, a January 2020 VA medical opinion indicated that the Veteran would be able to perform sedentary work but could not function in work environments that require repetitive bending at the waist, and that pushing and pulling heavy objects would worsen his lower back symptoms. 03/03/2020, C&P Exam. As the Veteran’s lumbar spine disability has been rated as 20 percent disabling since April 2009, the Board see that the limitations noted in the January 2020 medical opinion would extend back through the period on appeal. Upon review of all lay and medical evidence, and after affording the Veteran the benefit of the doubt, the Board finds that the Veteran’s level of disability based solely on his service-connected disabilities prior to December 2012, combined with his education, training, and experience, would render it impossible for the Veteran to obtain or retain substantially gainful employment of some type. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The evidence demonstrates that the Veteran’s service-connected lumbar spine spondylolisthesis with degenerative disc disease renders him unable to work in physical labor. Moreover, the Veteran’s high school education and his history of working almost entirely as a mechanic indicates that he would not be able to find substantially gainful employment in another profession or a sedentary employment field. Based on the combined effects of the Veteran’s service-connected disabilities, as well as the Veteran’s work history and education level, entitlement to a TDIU is warranted as of June 19, 2010, the date when the Veteran became unemployed. (Continued on the next page)   Given these reasons and after affording the Veteran the benefit of the doubt, TDIU on an extraschedular basis is warranted as of June 10, 2010. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.16(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-55 (1990). Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board David Han 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.